UMASS/AMHERST 


3120^005504^53 


LIBRARY 


OF  THE 


MASSACHUSETTS 

AGRICULTURAL 

COLLEGE 

sou  RCEtlass.-SocL.^aT  PmmiSlog-Agci: 

1883-mi 

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B27 

v.2 


PUBLICATIONS  OF  THE  MASSACHUSETTS  SOCIETY 
FOR  PROMOTING  AGRICULTURE 


I        THE  LAW 

OF  THE  ROADSIDE 


How   to    Protect   our    Landscape 


Electric  Lines  in  Public  Ways.     Shade  Trees 

in     Public    Ways.      Insect    Pests. 

Trespass  to  Real  Estate 


SECOND   EDITION,  igu 


PRESS  OF   CEO.    H.    ELLIS   CO.,  BOSTON 


CONTENTS. 


PAGE 

Explanatory  Note  to  Second  Edition      5 

Introductory  Note  7 

Chapter  I. 

Electric  Lines  in  Public  Ways 9 

Section    1. — Locations;  How  Obtained 9 

"        2. — Regulation  of  Electric  Lines  in  the  Streets 

and  Highways 25 

3. — Damages 34 

Chapter  II. 

Shade  Trees  in  Public  Ways 41 

Section    1. — Trees  and  Bushes  in  Public  Ways 42 

"        2. — Trees  and  Bushes  in  Parks 48 

"        3. — Trees  and  Bushes  in  State  Highways   ....  48 

"        4. — Rights  of  Owner  of  the  Fee 50 

"        5. — Criminal  Offences  and  Penalties 52 

Chapter  III. 

Laws  Relative  to  Insect  Pests 57 

Chapter  IV. 

Trespass 64 

Section    1 . — Criminal  Trespass 64 

"        2. — Civil  Trespass 73 

"        3. — The  Boundaries  of  the  Public  Way     ....  77 


EXPLANATORY  NOTE  TO  SECOND    EDITION. 


The  first  edition  of  this  pamphlet  was  compiled  by 
Augustus  Hemenway  and  George  W.  Anderson,  and  was 
published  in  1893.  For  a  statement  of  the  aims  and 
purposes  of  the  compilers  the  reader  is  referred  to  the 
introductory  note  to  that  edition,  which  is  here  reprinted. 

In  the  years  that  have  since  elapsed  many  changes 
have  been  made  in  the  statutes,  and  some  important  cases 
have  been  decided  by  the  Courts,  bearing  on  the  subjects 
treated.  The  Legislature  of  191 1  has  enacted  a  general 
revision  of  the  laws  relating  to  the  rights  of  electric  com- 
panies in  public  ways,  including  an  important  departure 
from  the  policy  of  the  earlier  laws  in  the  matter  of  appeals 
from  local  authorities  to  the  State  Commissions  in  certain 
cases.  It  is  to  be  hoped  that  the  law  on  this  subject 
will  now  be  permitted  to  remain  for  a  time  without  serious 
changes,  for  the  continual  alteration  of  laws  of  this  char- 
acter makes  it  well-nigh  impossible  for  the  ordinary 
citizen  to  keep  himself  informed  as  to  the  rights  of  him- 
self and  his  neighbors.  The  law  concerning  shade  trees, 
which  has  been  for  years  in  a  state  of  almost  hopeless 
confusion,  has  also  been  somewhat  simplified  by  recent 
enactments,  though  it  is  not  even  yet  as  comprehensible 
as  we  might  wish.  These  important  changes  and  many 
lesser  ones  have  been  embodied  in  the  present  edition.  A 
number  of  matters  closely  related  to  the  subjects  treated 


6  THE    LAW    OF    THE    ROADSTDE 

in  the  chapters  on  Electric  Lines,  Shade  Trees,  and 
Trespass,  but  not  touched  upon  in  the  first  edition,  have 
been  inserted  in  those  chapters.  A  new  chapter  in  regard 
to  Insect  Pests  has  also  been  added,  in  recognition  of  the 
great  danger  that  has  come  to  our  roadsides  and  wood- 
lands in  recent  years  from  the  gypsy  and  brown  tail 
moths  and  other  destructive  insects  with  which  they  are 
infested.  It  is  hoped  that  a  better  knowledge  of  the  laws 
on  this  subject  may  tend  in  some  degree  to  their  more 
effective  enforcement.  Finally,  it  has  been  necessary 
to  alter  all  citations  of  statutes  as  given  in  the  first  edi- 
tion, owing  to  the  fact  that  a  new  revision  of  the  general 
laws,  known  as  the  Revised  Laws  of  Massachusetts,  was 
adopted  in  1901,  embodying  the  provisions  of  the  Public 
Statutes  with  all  amendments  and  additions  to  that  date. 
The  general  plan  of  the  earlier  book  and  much  of  its 
language  are  unchanged.  The  object  of  bringing  it  up 
to  date  is  the  same  which  led  to  its  original  publication; 
namely,  the  protection  of  the  landscape,  and  especially 
the  roadside,  from  disfigurement.  The  need  for  a  general 
public  knowledge  of  the  laws  which  have  been  passed  for 
this  purpose,  and  the  need  for  extreme  vigilance  on  the 
part  of  local  officials  and  public-spirited  citizens  to  secure 
the  due  enforcement  of  these  laws,  is  no  less  than  it  was 
eighteen  years  ago.  The  machinery  of  the  law  has  been 
improved  in  some  respects,  but  the  law  is  not  of  much 
help  to  the  land-owner  unless  he  is  willing  to  make  some 
effort  to  help  himself. 

RICHARD   M.  SALTONSTALL. 

WARREN  MOTLEY. 
Boston,  October,  191 1. 


INTRODUCTORY    NOTE. 


The  extension  of  the  uses  of  electricity  has  not  been  an 
unmixed  blessing.  The  annoyances  and  dangers  caused 
by  the  various  electrical  companies  in  running  their  lines 
through  the  streets  and  highways,  over  the  land  of  in- 
dividual owners  and  over  roofs,  are  well  known  and  the 
source  of  endless  complaint.  In  many  streets  and  highways 
two,  three,  and  even  four,  lines  of  poles  are  found,  seriously 
impairing  the  public  use  of  the  way,  when  one  line,  or  at 
the  most  two  lines,  would  do  as  well.  The  beauty  of  the 
landscape  is  injured,  not  only  by  the  presence  of  these  un- 
sightly poles  and  wires,  but  still  more  by  the  hacking  and 
destruction  of  shade  trees  by  the  employees  of  these  com- 
panies. Private  property  is  invaded,  wires  are  attached 
to  trees  and  fences  without  asking  permission  of  the 
owners.  In  many  cases,  poles  are  set  in  land  outside  the 
limit  of  the  public  way. 

The  laws  regulating  these  companies  and  their  rights  in 
the  highways  and  over  the  property  of  individuals  are  not 
perfectly  clear,  nor  are  they  commonly  known  and  under- 
stood. Whether  they  are  adequate  or  not  cannot  be 
absolutely  determined  until  people  become  more  familiar 
with  them,  and  more  attempts  are  made  to  enforce  them. 

City  and  town  officials  and  residents  of  suburban  towns 


8  THE    LAW    OF    THE    ROADSIDE 

are  especially  interested  in  all  statutes  relating  to  the 
rights  of  electrical  companies  in  the  highways. 

Chapter  I.  of  this  pamphlet  is  an  endeavor  to  present 
these  statutes  in  a  convenient  form,  with  such  explana- 
tory comment  as  shall  make  their  meaning  clear. 

Chapter  II.  is  an  attempt  to  state  the  present  law  of 
Massachusetts  which  has  for  its  purpose  the  cultivation 
and  protection  of  roadside  trees.  The  statutes  on  this 
subject  are  many.  New  enactments  have  apparently 
been  passed  with  very  little  knowledge  or  regard  for  the 
previously  existing  law.  The  result  is  an  almost  inextri- 
cable maze.  It  is  hoped  that  the  statement  herein  is 
correct,  and  that  it  covers  all  important  points. 

Chapter  III.  states  the  laws  relative  to  insect  pests. 

Chapter  IV.  is  a  brief  statement  of  the  statute  law 
relating  to  trespass  and  the  remedies  therefor. 

To  protect  the  landscape,  and  especially  the  highways, 
from  any  illegal  and  unnecessary  disfigurement  is  the 
object  of  compiling  this  little  pamphlet. 


CHAPTER   I. 
ELECTRIC  LINES   IN  PUBLIC   WAYS. 


Section    I.      LOCATIONS;     HOW   OBTAINED. 

The  first  inquiry  concerning  electric  companies  that 
interests  us  is  how  they  obtain  the  right  to  run  their 
lines  through  the  streets  and  highways  and  across  private 
property. 

It  should  be  here  stated  that,  while  the  statutes  were,   Kinds  of 
when  first  passed,  limited  in  their  operation  to  telegraph  comPaaies 

,  ,  .  ,  ,.  covered  by  this 

companies,  they  have  since  been  made  applicable  to  chapter, 
electric  light  companies  and  to  telephone  companies,  so 
that  all  companies  using  poles  and  wires  for  the  trans- 
mission of  electricity  are  subject  to  practically  the  same 
provisions,  so  far  as  rights  in  public  ways  and  over  private 
property  are  concerned.  The  same  is  true  of  street  rail- 
way and  electric  railroad  companies,  so  far  as  relates  to 
the  transmission  lines  and  telephone,  signal,  and  feed 
wires  of  such  companies  in  public  ways  or  parts  of  such 
ways  other  than  those  in  which  their  tracks  are  laid. 
Revised  Laws,  Chap.  122,  Sec.  1  (as  amended  by  Acts  of 
1911,  Chap.  509,  Sec.  1).  It  is  not  intended  to  treat  in 
this  pamphlet  of  the  rights  of  street  railway  or  electric 
railroad  companies  in  public  ways  in  which  their  tracks 


IO  THE    LAW    OF    THE    ROADSIDE 

are  laid,  and  the  term  "electric  companies"  as  used 
herein  does  not  include  such  companies  except  in  respect 
to  their  rights  in  regard  to  poles  and  wires  in  streets 
where  they  have  no  tracks. 

The  right  of  an  electric  company  to  run  wires  over  or 
under  a  public  way  is  called  a  location.  To  obtain  a 
location,  the  company  must  petition  in  writing  the  mayor 
and  aldermen  of  the  city,  or  the  selectmen  of  the  town, 
in  which  is  situated  the  public  way  over  which  the  com- 
pany desires  to  run  its  line.  The  officials  who  are  thus 
petitioned  may  grant  or  refuse  such  location  in  their 
discretion.  Suburban  Light  &  Power  Co.  v.  Boston, 
153  Mass.  200;  Revised  Laws,  Chap.  122,  Sec.  2  (as 
amended  by  Acts  of  191 1,  Chap.  509,  Sec.  2). 

A  location  may  be  granted  only  after  a  public  hearing, 
written  notice  of  which  has  been  given  to  all  abutting 
land  owners.  The  order  granting  a  location  is  recorded 
with  the  records  of  the  city  or  town,  in  books  kept  ex- 
clusively for  the  purpose,  where  any  citizen  may  examine 
it  and  ascertain  exactly  what  privileges  the  company  has 
obtained.  The  records  should  show,  not  only  through 
what  streets  the  company  may  run  its  lines,  but  also 
where  poles  may  be  placed,  the  kind  of  poles,  the  number 
of  wires  or  cables  which  may  be  attached  thereto,  and 
the  height  at  which  and  the  places  where  the  wires  may 
run  (Revised  Laws,  Chap.  122,  Sec.  2,  as  amended  Acts 
1 91 1,  Chap.  509,  Sec.  2),  and,  in  certain  cases  of  com- 
panies distributing  electricity  exclusively  for  power,  such 
other  restrictions  as  may  be  imposed  by  the  mayor  and 
aldermen  or  selectmen  (Acts  of  1908,  Chap.  617),  such 


ELECTRIC    LINES    IN    PUBLIC    WAYS  II 

last  named  restrictions,  however,  being  subject  to  re- 
vision by  the  Board  of  Gas  and  Electric  Light  Commis- 
'sioners  upon  appeal. 

Where  a  lighting  company  desires  for  the  first  time  New  company. 

jto  lay  or  erect  its  wires  over  or  under  the  public  ways 

of  a  city  or  town  in  which  another   company  is  doing 

business,  it  must  first  apply  to  the  local  authorities  as 

above   stated,  and   from   their   decision   the  petitioning 

company  or  the  existing  company  or  any  abutting  land 

owner  may  take  an  appeal  to  the  Board  of  Gas  and 

Electric    Light    Commissioners.      Revised   Laws,    Chap. 

121,  Sees.   26,  27.     See  also  Acts  of  1908,  Chap.  617. 

But  if  the  Commissioners,  on  appeal,  decide  in  favor  of 

j  the  petitioning  company,  it  must  still  obtain  a  specific 

j  location  from  the  local  authorities  in  accordance  with 

I  the   procedure   hereinafter   outlined,    before   it    has   the 

right  to  occupy  the  public  streets.     The  Commissioners 

have  no  power,  under  this  statute,  to  grant  a  location 

over  the  heads  of  the  local  authorities. 

By  the  terms  of  a  new  law  passed  in  191 1,  however,  Right  of  appeal 
that  right  is  given  in  certain  cases.  Where  a  company  t0  State  boards- 
has  been  granted  and  has  accepted  locations  for  its  lines 
in  two  cities  or  towns,  but  its  petition  for  a  location  has 
been  refused  or  has  not  been  granted  within  three  months 
of  its  riling,  in  a  town  adjoining  the  other  two  and  through 
which  the  line  must  pass  to  connect  its  proposed  termini, 
the  company  may  apply,  if  it  be  an  electric  light,  heat, 
or  power  company,  to  the  Board  of  Gas  and  Electric 
Light  Commissioners,  or,  if  it  be  a  street  railway  or  electric 
railroad  company,  to  the  Board  of  Railroad  Commissioners, 


12  THE  LAW  OF  THE  ROADSIDE 

for  a  location  in  such  city  or  town,  and  the  Board  to  which 
such  application  is  made  may  grant  such  a  location  after 
notice  to  abutting  land  owners  and  a  public  hearing,  if 
it  deems  that  it  is  necessary  for  the  public  convenience 
and  will  be  in  the  public  interest.  The  Board  is  re- 
quired to  cause  a  copy  of  its  order  in  such  a  case  to  be 
forwarded  to  the  clerk  of  the  city  or  town,  whose  duty  it 
is  to  record  the  same.  A  citizen  desiring  information 
with  regard  to  a  location  granted  in  this  manner  should 
therefore  be  able  to  obtain  the  same  from  the  city  or  town 
records,  just  as  in  the  case  of  locations  granted  by  the 
local  officials.  This  statute  does  not  apply  to  telephone 
or  telegraph  companies.     Acts  of  191 1,  Chap.  509,  Sec.  8. 

This  same  statute  (Acts  191 1,  Chap.  509,  Sec.  7) 
provides  that  no  ordinance  or  regulation  of  a  city  or 
town,  or  regulation  or  restriction  imposed  in  a  grant  of 
location,  affecting  the  erection,  maintenance  or  operation 
of  transmission  lines  from  a  point  in  one  city  or  town 
through  or  to  a  point  in  another,  shall  take  effect  until 
approved  by  the  Board  of  Gas  and  Electric  Light  Com- 
missioners in  the  case  of  electric  light,  heat,  or  power 
companies,  or  the  Board  of  Railroad  Commissioners  in 
the  case  of  street  railway  or  electric  railroad  com- 
panies. 

Attention  may  here  be  called  to  another  recent  statute 
(Acts  191 1,  Chap.  481)  confirming  locations  granted  by 
the  selectmen  or  mayor  and  aldermen  of  any  city  or 
town  >and  now  in  actual  use,  provided  the  company 
claiming  any  such  location  shall  file  a  map  thereof  to  be 
kept  with  the  city  or  town  records.     This  does  not,  how- 


landowner. 


ELECTRIC  LINES  IN   PUBLIC  WAYS  13 

ever,  purport  to  legalize  any  poles,  wires,  or  structures 
unless  an  express  grant  of  location  therefor  has  been  made 
jby  the  selectmen  or  mayor  and  aldermen. 

Locations  upon   State    highways  are    subject   to  the  state  highways. 
I  approval  of  the  Highway  Commission,  and  to  its  regu- 
lations.    Revised  Laws,   Chap.   47,   Sees,    n,   21.      See 
Opinion  Atty.  Gen.  July  18,  1906,  An.  Rep.  p.  54. 

Unless  the  company  has  obtained  a  duly  recorded  loca-  Rights  of 
tion,  it  has  no  right  whatever  in  the  streets  or  highways, 
and  as  the  owner  of  the  adjoining  land  ordinarily  owns 
;  the  fee  to  the  middle  of  the  road,  subject  merely  to  the 
i  public  easement  for  highway  purposes,  he  may  cut  down 
1  the  poles  and  remove  them.  If  you  are  disturbed  or 
injured  by  poles  or  wires  already  up  or  about  being  erected, 
first  ascertain  from  the  town  clerk  whether  these  poles 
and  wires  are  rightfully  there.  Then,  if  they  are  not, 
as  a  matter  of  courtesy,  give  the  company  notice  to  re- 
move them.  If  the  company  fails  to  do  so  you  may 
dig  them  up  or  cut  them  down.  This  is  a  remedy,  how- 
ever, which  should  be  exercised  only  where  the  company 
is  clearly  at  fault  and  with  due  regard  to  the  rights  of 
the  public  to  have  the  streets  and  highways  maintained 
in  a  safe  condition  for  their  use.  Employees  of  com- 
panies very  frequently  disregard  the  details  of  the  loca- 
tions granted,  and  place  the  poles  and  wires  wherever 
they  find  it  most  convenient.  If  a  company  has  placed 
a  pole  in  a  public  way,  the  fee  of  which  belongs  to  you, 
not  in  accordance  with  a  location  granted  in  writing  by 
the  mayor  and  aldermen  or  selectmen,  it  is  a  trespass, 
and   you  are  under  no  obligation  to  permit  a  continu- 


14  THE  LAW  OF  THE  ROADSIDE 

ing  trespass  on  your  land.  But  do  not  convert  the 
poles,  that  you  dig  up  or  cut  down,  to  your  own  use. 
Because  they  are  wrongfully  placed  on  your  land,  you 
are  not  justified  in  using  them  as  your  own.  You  may 
remove  them,  placing  them  where  the  company  can 
get  them,  and  as  much  out  of  your  own  way  as  possible. 
If  the  company  owns  land  in  the  vicinity,  you  should 
remove  them  from  your  property  to  their  own  land.  If 
you  should  use  the  poles  as  your  own,  you  might  have  to 
pay  a  large  price  for  them. 

In  case  you  find  that  a  location  has  been  granted,  but 
the  line  appears  to  have  been  constructed  contrary  to 
its  terms,  be  careful  to  ascertain  whether  there  was  an 
appeal  to  the  Board  of  Gas  and  Electric  Light  Commis- 
sioners, and,  if  so,  what  order  was  made  by  them,  or,  in 
the  case  of  a  line  running  from  one  city  or  town  into 
another,  the  location  for  which  was  granted  since  the 
passage  of  the  Act  of  191 1,  that  the  conditions  imposed 
were  duly  approved  by  the  said  Board  or  the  Board  of 
Railroad  Commissioners.  Also,  if  a  State  highway  is 
in  question,  ascertain  whether  a  permit  has  been  obtained 
from  the  Highway  Commission,  and  whether  its  regula- 
tions have  been  observed. 

The  law  requires  that  a  public  hearing  shall  be  held  on 
every  petition  for  a  location,  and  that  written  notices  of 
the  time  and  place  thereof  shall  be  mailed  to  all  abutting 
land  owners.  This  affords  the  land  owners  an  oppor- 
tunity to  object  that  the  location  applied  for  is  unneces- 
sary or  inadvisable.  It  is  of  the  greatest  importance,  in 
cities  and  suburban  towns  through  which  great  numbers 


ELECTRIC  LINES  IN  PUBLIC  WAYS  15 

of  lines  run,  that  the  streets  should  not  be  unnecessarily 
cumbered  by  unsightly  poles,  which  not  only  interfere 
with  the  passage  of  people  and  teams,  but  cause  great 
destruction  of  shade  trees.  New  locations  should  not  be 
granted  through  streets  which  are,  or  are  likely  to  be, 
fully  occupied  for  residences,  unless  it  is  impracticable 
to  run  the  lines  through  some  less  objectionable  locality, 
or  to  run  the  new  wires  on  a  line  of  poles  already  stand- 
ing. 

The  Legislature  has  wisely  provided  that  no  locations  No  rights  by 
shall  be  obtained  by  prescription.  If  your  neighbor  Prescr,Ptlon- 
passes  over  your  land  peaceably,  openly,  and  under  a 
claim  of  right,  for  twenty  years  or  more,  he  is  then  said 
to  have  a  "right  of  way  by  prescription,"  and  you  cannot 
afterwards  prevent  him  from  so  using  your  land.  But 
not  so  with  reference  to  electric  companies  in  the  high- 
way. No  matter  how  long  the  company  has  maintained 
its  lines,  unless  it  can  show  a  proper  permit  from  the 
mayor  and  aldermen  or  from  the  selectmen,  it  has  no 
right  in  the  highway.  From  this  it  follows,  of  course, 
that  you  may  have  a  right  to  remove,  as  constituting  a 
trespass,  poles  which  may  have  stood  on  your  land  for 
twenty-five  years  or  more.  See  Revised  Laws,  Chapter 
122,  Section  26,  which  is  as  follows: — 

"No  enjoyment  for  the  purposes  specified  in  section  one  of  this 
chapter  by  a  person  or  corporation  for  any  length  of  time  of  the 
privilege  of  having  or  maintaining  poles,  wires,  or  apparatus  in, 
upon,  over,  or  attached  to  any  building  or  land  of  other  persons 
shall  give  a  legal  right  to  the  continued  enjoyment  of  such  easement, 
or  raise  any  presumption  of  a  grant  thereof." 


1 6  THE  LAW  OF  THE  ROADSIDE 

Consolidation        The  question  of  requiring  two  or  more  companies  tc 
of  wires.  consolidate  their  wires  on  a  single  line  of  poles  is  further 

discussed  in  Section  2  on  "Regulations."  But,  as  re- 
gards the  granting  of  new  locations,  it  may  be  here 
stated  that,  when  application  is  made  for  a  permit  to  run 
a  line  of  wires  through  streets  and  highways  already 
having  one  or  more  such  lines,  the  officials  may  well 
refuse  to  grant  the  new  line  the  right,  unless  it  will  run 
on  an  existing  line  of  poles.  Generally,  this  can  be  ar- 
ranged between  the  old  and  the  new  companies  without 
interference  on  the  part  of  the  officials,  further  than  tc 
refuse  permission  to  erect  an  additional  line  of  poles 
The  statutes  confer  upon  the  mayor  and  aldermen  01 
selectmen  ample  authority,  upon  petition  of  two  or  mort 
companies,  to  permit  one  of  them  to  affix  its  wires  to  the 
poles  of  another,  or  to  grant  to  such  companies  joint  01 
identical  locations  for  poles  to  be  used  in  common  b> 
them;  but  whether  the  officials  can  lawfully  compel  an 
electric  company  having  an  existing  line  of  poles  on  a 
public  way  to  permit  a  new  company  to  string  its  wires 
on  those  poles  is  open  to  some  doubt.  Probably  the 
officials  have  such  power,  provided  it  appear  that  sucr 
action  will  not  unreasonably  interfere  with  the  business 
of  the  old  company.  This  does  not  mean  that  the  mayoi 
and  aldermen  or  selectmen  may  require  a  telegraph  oi 
telephone  company  that  uses  a  "low  tension"  wire  tc 
permit  an  electric  light  company  that  uses  a  "high  ten 
sion"  wire  to  place  its  wires  on  the  poles  of  the  former 
The  induction  would  probably  in  such  case  render  th< 
"low    tension"    wire    useless.     But    the    above    namec 


ELECTRIC  LINES  IN  PUBLIC  WAYS  17 

officials  may  make,  either  for  the  erection  or  the  main- 
tenance of  electric  lines,  any  regulation  that  is  reason- 
able. Revised  Laws,  Chap.  25,  Sec.  54.  What  is  "reason- 
able" is  a  question  of  fact  for  a  jury  under  proper 
instructions  from  the  Court.  It  certainly  is  unreason- 
able, so  far  as  the  rights  of  the  public  and  of  land  owners 
are  concerned,  that  highways  should  contain  two  or 
three  lines  of  unsightly  poles  when  one  line  would  do 
as  well.  This  Commonwealth  has  passed  many  statutes 
for  the  purpose  of  fostering  and  protecting  shade  trees. 
Nothing  is  more  destructive  of  shade  trees  than  the  lines 
of  these  numerous  electric  companies  in  our  highways. 
This  is  an  additional  reason,  if  any  were  needed,  for 
holding  a  regulation  to  be  reasonable  which  requires 
all  wires  to  be  consolidated  on  a  single  line  of  poles  when- 
ever such  consolidation  can  be  effected  without  impair- 
ing their  usefulness. 

At  hearings  before  a  committee  of  the  Legislature  in 
1 89 1  it  was  proposed  to  amend  the  law  so  as  to  give,  in 
express  terms,  to  city  and  town  authorities,  power  to 
require  one  electric  company  to  permit  another  to  string 
its  wires  on  poles  already  erected.  The  attorneys  for  the 
various  electric  companies,  in  opposing  such  amend- 
ment, claimed  that  the  mayor  and  aldermen  and  the 
selectmen  already  had  such  power,  provided  that  in  any 
*iven  case  said  combination  of  wires  was  "reasonable." 
These  attorneys  of  the  companies  contended  that  the 
existing  statutes  gave  to  the  above  named  authorities 
Dower  to  make  any  and  all  regulations  that  are  reasonable, 
md  apparently  their  construction  of  the  law  is  correct. 


1 8  THE  LAW  OF  THE  ROADSIDE 

Whether  locations  once  granted  may  be  entirely  re- 
voked by  the  mayor  and  aldermen  or  selectmen  is  a 
question  which  has  never  been  tested  before  our  Court. 
It  has,  however,  been  decided  that  the  Legislature  has 
the  absolute  power  to  revoke  such  locations.  N.  E.  Tel. 
&  Tel.  Co.  v.  Boston  Terminal  Co.,  182  Mass.  397;  Boston 
El.  Light  Co.  v.  Same,  184  Mass.  566.  The  city  and 
town  officials  are  expressly  given  authority  to  direct  any 
alteration  in  the  location  of  the  poles  or  in  the  height  of 
the  wires  (Revised  Laws,  Chap.  122,  Sec.  2,  as  amended 
Acts  191 1,  Chap.  509)  and  to  establish  "reasonable  regu- 
lations." There  can  be  no  doubt  that  "reasonable  regu- 
lation" includes  the  revocation  of  a  location  through  a 
particular  street,  provided  that  some  other  reasonable 
location  is  granted;  but  it  is  probable  that  city  and 
town  authorities  cannot  legally  revoke  a  location  with- 
out granting  another  which  shall  be  reasonably  suffi- 
cient for  the  business  of  the  company.  A  special  stat- 
utory provision  closely  limits  the  authority  of  such 
officials  to  revoke  locations  of  a  lighting  company  where 
a  municipal  lighting  plant  has  been  established  or  is 
in  contemplation.  Revised  Laws,  Chap.  34,  Sec.  31. 
There  is  also  a  special  provision  with  regard  to  locations 
for  wires  of  street  railway  companies  in  public  ways  other 
than  those  wherein  their  tracks  are  laid,  whereby  such 
locations,  like  other  street  railway  locations,  can  only  be 
revoked  with  the  approval  of  the  Board  of  Railroad  Com- 
missioners after  public  notice  and  a  hearing.  Revised 
Laws,  Chap.  122,  Sec.  2  (as  amended  Acts  191 1,  Chap, 
509)- 


ELECTRIC  LINES  IN  PUBLIC  WAYS  19 

Revised  Laws,  Chapter  48,  Section  85,  provides  that,  Reserved  spaces 
if  the  city  council  of  a  city  or  a  town  has  accepted  the  1D  ways' 
provisions  thereof,  the  board  or  officers  authorized  to 
lay  out  highways  may  reserve  spaces  therein  for  electric 
wires  and  other  specified  purposes.  Where  such  a  space 
has  been  reserved,  the  mayor  and  aldermen  or  selectmen 
may  unquestionably  refuse  to  grant  a  location  in  any 
other  part  of  the  highway,  and  may  require  the  removal  of 
poles  and  wires  into  such  reserved  space.  See  Eustis  v. 
Milton  St.  Ry.  Co.,  183  Mass.  586. 

Some  question  has  been  made  whether  telegraph  com-  Federal  laws. 
panies,  which  are  subject  to  the  control  of  Congress  as 
being  means  of  interstate  commerce,  may  not  be  entitled 
to  locations  through  all  streets  and  highways  without 
regard  to  State  laws.  The  Revised  Statutes  of  the  United 
States,  Section  5263,  provides  that  any  telegraph  com- 
pany shall  have  the  right  to  construct,  maintain,  and 
operate  lines  over  and  along  any  of  the  post  roads  of  the 
United  States,  but  that  such  lines  shall  not  interfere  with 
the  ordinary  travel  on  such  post  roads.  23  United  States 
Statutes  at  Large,  3  (1884),  provides  that  "All  public 
roads  and  highways  while  kept  up  and  maintained  as 
such  are  hereby  declared  to  be  post  routes."  The  Supreme 
Court  of  the  United  States  has  held  that  no  State  can 
prevent  a  telegraph  company  from  running  its  lines 
for  interstate  business  along  the  highways.  Pensacola 
Tel.  Co.  v.  Western  Union  Tel.  Co.,  96  U.  S.  1.  But 
such  companies  must  submit  to  reasonable  State  regula- 
tions.    Richmond  v.  So.  Bell.  Tel.  Co.,  174  U.  S.  761. 

Our  Massachusetts  Supreme  Court  has  held  that  loca- 


20  THE  LAW  OF  THE  ROADSIDE 

tions  may  be  refused  (Suburban  Light  &  Power  Co.  v. 
Boston,  153  Mass.  200;  Pierce  v.  Drew,  136  Mass.  75; 
Young  v.  Yarmouth,  9  Gray,  386;  Comm.  v.  Boston,  97 
Mass.  555),  and  ordinarily  the  companies  make  no  at- 
tempt to  obtain  rights  under  the  laws  made  by  Congress. 

On  private  land.  Over  private  territory  electric  companies  have,  of  course, 
no  rights  whatever,  except  as  they  purchase  them. 

If  a  land  owner  gives  a  company  permission  to  place 
poles  in,  or  to  run  wires  over,  his  land,  this  permission 
amounts  merely  to  a  license  preventing  the  occupation 
from  being  a  trespass  so  long  as  the  permission  is  unre- 
voked. But  the  land  owner  may  recall  his  permission 
at  any  time,  and,  after  notice  to  the  company,  he  may 
remove  the  poles  and  wires. 

The  land  owner  owns  not  only  the  land,  but  the  air 
over  it;  and  it  is  a  trespass  to  string  wires  through  the 
air  over  your  land  without  your  permission.  Electric 
companies  very  often  commit  trespasses  by  cutting  cor- 
ners. The  land  owner  may  remove  the  wires  in  such  a 
case.  Of  course,  the  companies  have  no  right  whatever 
to  attach  guy  wires  to  your  trees  or  fences,  and  if  they 
fail  to  remove  them  after  notice  you  have  a  right  to 
cut  them. 

Electric  lines  for  Section  52  of  Chapter  25  of  Revised  Laws  contains  a 
provision  by  which  private  parties  may  obtain  a  loca- 
tion for  an  electric  line  for  private  use,  as  follows: — 

"The  Selectmen  may,  upon  terms  and  conditions  prescribed  by 
them,  and  subject  to  the  provisions  of  chapter  one  hundred  and 
twenty-two,  so  far  as  applicable,  authorize  a  person  to  construct 
lines  for  private  use  upon,  along  and  under  the  public  ways  of  the 


private  use. 


ELECTRIC  LINES  IN  PUBLIC  WAYS  21 

town  for  the  transmission  by  electricity,  of  light,  or  of  heat  or  power, 
except  such  as  is  used  by  street  railway  companies  or  for  the  trans- 
mission, by  electricity  or  otherwise,  of  intelligence  by  telegraph  or 
telephone.  Upon  the  construction  of  such  line,  the  poles  and  struct- 
ures thereof  within  the  location  of  such  ways  shall  become  the  prop- 
erty of  the  town,  and  the  selectmen  may  regulate  and  control  the 
same,  may  at  any  time  require  the  persons  using  the  same  to  make 
alterations  in  the  location  or  construction  thereof  and  may,  after 
notice  and  a  hearing,  order  the  removal  thereof.  The  town  may  at 
any  time  attach  wires  for  its  own  use  to  such  poles  and  structures, 
and  the  selectmen  may  permit  other  persons  to  attach  wires  for 
their  private  use  thereto  or  to  poles  and  structures  constructed  by 
the  town,  and  may  prescribe  reasonable  terms  and  conditions  there- 
for." 

Note  particularly  that  the  poles  and  structures  become 
the  property  of  the  town,  so  that  the  party  erecting  them 
has  not  the  right  to  remove  them.  Note  also  that  the 
selectmen  may  permit  other  persons  to  attach  to  these 
poles  wires  for  private  use. 

Cities  and  towns  may,  subject  to  the  limitations  con-  Municipal 
tained  in  Chapter  34  of  the  Revised  Laws,  engage  in  the  lg  ting  p  ants' 
manufacture  or  distribution  of  electricity  for  municipal 
use  or  for  the  use  of  their  inhabitants  (Section  1).  Such 
municipal  lighting  plant  and  business  shall  be  under  the 
management  of  a  manager  of  municipal  lighting,  subject 
to  the  direction  of  the  mayor  of  the  city  or  the  selectmen 
or  municipal  light  board,  if  any  (see  Sec.  19),  of  the  town. 
Revised  Laws,  Chap.  34,  Sec.  20. 

With  regard  to  a  city  or  town  which  is  lawfully  en- 
gaged in  such  business,  Revised  Laws,  Chapter  34, 
Section  30,  provides  as  follows: — 


2  2  THE   LAW  OF  THE   ROADSIDE 

"All  general  laws,  and  all  ordinances  or  by-laws  of  any  city  or 
town  acting  under  the  provisions  of  this  chapter,  relative  to  the 
manufacture,  use  or  distribution  of  gas  or  electricity,  or  to  the 
quality  thereof,  or  to  the  plant  or  the  appliances  therefor,  shall 
apply  to  such  city  or  town,  in  the  same  manner  as  to  persons,  so 
far  as  applicable  and  consistent  with  the  provisions  of  this  chapter." 

It  seems  clear  from  this  section  that,  in  the  matter  of 
obtaining  locations  for  its  poles  and  wires,  a  city  or  town 
must  proceed  by  its  manager  of  municipal  lighting  or  by 
its  mayor  or  selectmen  or  municipal  light  board,  if  any, 
in  the  same  way  as  an  electric  company,  namely,  it  must 
petition  the  mayor  and  aldermen  or  selectmen,  who,  in 
the  granting  of  locations,  act  as  agents  of  the  State  and 
not  of  the  municipality,  and  who  may  act  only  after  due 
notice  to  abutting  land  owners  and  a  public  hearing, 
as  in  other  cases. 

In  certain  cases  a  city  or  town  may  acquire  from  a 
company,  and  may  maintain,  poles  and  wires  for  the  dis- 
tribution of  electricity  in  an  adjoining  city  or  town. 
In  such  case  it  is  provided  that  it 

"shall  thereafter  have  therein  the  same  rights  and  franchises  and 
be  subject  to  the  same  limitations  and  obligations  as  the  person 
or  corporation  from  whom  such  outlying  plant  was  purchased  would 
have  had  or  to  which  he  or  it  would  have  been  subject  had  such 
purchase  not  been  made."     Revised  Laws,  Chap.  34,  Sec.  14. 

Of  course,  the  rights  of  a  city  or  town  to  erect  or  main- 
tain poles,  wires,  or  other  fixtures  either  on  the  private 
property  of  others  or  on  highways,  if  proper  locations  have 
not  been  granted  them,  whether  within  their  own  boun- 


ELECTRIC  LINES  IN  PUBLIC  WAYS  23 

daries  or  in  adjoining  cities  or  towns,  are  no  greater  than 
would  be  the  case  with  any  individual  or  company. 

In  regard  to  the  liability  of  such  city  or  town,  Revised 
Laws,  Chapter  34,  Section  28,  provides: — 

"A  city  or  town  which  owns  or  operates  a  gas  or  electric  lighting 
plant  shall  be  liable  for  any  injury  or  damage  to  persons  or  property 
caused  by  its  maintenance  or  operation,  in  the  same  manner  and  to 
the  same  extent  as  a  private  corporation." 

The  Legislature  has  provided  a  remedy  in  the  crimi-  Criminal  law. 
nal  courts  against  companies  not  conforming  to  the  law. 
This  provision  (Revised  Laws,  Chap.  122,  Sees.  22,  23) 
is  as  follows: — 

"Section  22.  A  corporation  or  person  maintaining  or  operating 
telephone,  telegraph  or  other  electric  wires  or  any  other  person  who 
in  any  manner  affixes  or  causes  to  be  affixed  to  the  property  of  an- 
other any  pole,  structure,  fixture,  wire  or  other  apparatus  for  tele- 
phonic, telegraphic  or  other  electrical  communication,  or  who 
enters  upon  the  property  of  another  for  the  purpose  of  affixing  the 
same,  without  first  obtaining  the  consent  of  the  owner  or  lawful 
agent  of  the  owner  of  such  property,  shall,  on  complaint  of  such 
owner  or  his  tenant,  be  punished  by  a  fine  of  not  more  than  one 
hundred  dollars. 

"Section  23  (as  amended  Acts  191 1,  Chap.  509,  Sec.  5).  A 
corporation  or  person  maintaining  or  operating  telephone,  tele- 
graph or  other  electric  wires  shall,  at  all  places  where  such  wires 
are  affixed  by  any  pole,  structure  or  fixture  to  the  property  of  an- 
other, mark  such  pole,  structure  or  fixture  in  a  clear,  durable  and 
legible  manner  with  the  name  or  initials  of  the  corporation  or  person 
maintaining  or  operating  such  wires,  and  any  corporation  or  person 
who  fails  to  comply  with  the  provisions  of  this  section  shall  be  pun- 
ished by  a  fine  of  not  more  than  one  hundred  dollars." 


24  THE  LAW  OF  THE  ROADSIDE 

If  an  electric  company  fastens  its  wires  to  your  trees 
or  fences,  or  enters  on  your  land  for  the  purpose  of  doing 
so,  without  your  prior  consent,  you  can  make  complaint 
to  a  Trial  Justice  or  Justice  of  a  Police,  District,  or  Muni- 
cipal Court,  whose  duty  it  then  is  to  cause  the  case  to 
be  carried  forward  according  to  the  usual  method  of 
criminal  procedure.  If  the  Justice  should  fail  to  enforce 
the  law  and  the  company  persists,  you  should  complain  to 
the  District  Attorney,  who  may  take  steps  to  cause  the 
corporation  to  be  indicted.  As  it  is  a  criminal  proceeding, 
on  complaint  it  is  the  duty  of  the  government  officers  to 
carry  on  the  prosecution,  and  the  costs  are,  of  course,  paid 
by  the  government. 

Section  23  of  this  act  is  of  great  value  in  compelling  the 
companies  so  to  mark  their  property  that  every  land 
owner  may  know  who  is  responsible  for  particular  lines, 
and  whose  agents  are  at  work  altering  or  repairing  those 
lines.  It  is  of  great  importance  that  the  companies  be 
compelled  to  comply  with  this  section,  and,  if  any  of  them 
have  failed  so  to  do  in  any  town  or  city,  some  public- 
spirited  citizen  should  make  complaint. 


ELECTRIC  LINES  IN  PUBLIC  WAYS  25 

Section  2.    REGULATION  OF  ELECTRIC  LINES   IN  THE 
STREETS    AND    HIGHWAYS. 

"Regulation"  is  a  comprehensive  term.  It  may  in-  "Regulation, 
elude  even  the  revocation  of  a  location,  provided  another 
reasonable  location  is  granted.  A  change  of  the  posi- 
tion of  the  poles  within  the  street,  a  substitution  of  one 
kind  or  size  of  poles  for  another,  a  rearrangement  of 
wires  on  the  poles, — all  these  certainly  fall  within  the 
scope  of  the  term   " regulation." 

The  same  power  that  may  grant  locations  may  regu- 
late after  granting,  so  as  to  adapt  the  condition  of  the 
highways  to  the  changing  needs  of  the  public.  In  cities 
the  regulations  made  by  the  mayor  and  aldermen  must 
be  by  ordinance:  the  selectmen  of  towns  may  regulate 
by  simple  orders  of  the  board,  duly  recorded.  Revised 
Laws,  Chap.  25,  Sec.  54;  Revised  Laws,  Chap.  26,  Sees. 
2,  6;  Revised  Laws,  Chap.  122,  Sec.  2;  Acts  1906,  Chap. 
117,  Sec.  1. 

Section  54  of  Chapter  25  of  the  Revised  Laws  may  be 
quoted  in  full: — 

"Section  54.  The  selectmen  may,  within  their  respective  towns, 
permit  telegraph  and  telephone  lines  to  be  laid  under  any  way  or 
square,  and  may  establish  reasonable  regulations  for  the  erection 
and  maintenance  of  all  lines  for  the  transmission  of  intelligence  by 
telegraph  or  telephone,  by  electricity  or  otherwise,  or  for  the  trans- 
mission by  electricity  of  light,  or  of  heat  or  power  except  such  as  is 
used  by  street  railway  companies,  by  every  person  having  authority 
to  place  poles,  wires;  structures  and  other  appliances  for  any  purpose 
in  or  under  public  ways  or  places,  including  all  lines  owned  or  used 
by  said  towns." 


26  THE  LAW   OF  THE   ROADSIDE 

Section  2  of  Chapter  122  of  the  Revised  Laws  (as 
amended  Acts  1911,  Chap.  509,  Sec.  2)  further  provides: — 

"After  the  erection  or  construction  of  such  line  the  mayor  and 
aldermen  or  selectmen  may,  after  giving  the  company  or  its  agents 
an  opportunity  to  be  heard,  or  upon  petition  of  the  company  with- 
out notice  or  hearing,  by  order  permit  an  increase  in  the  number  of 
wires  or  cables  and  direct  an  alteration  in  the  location  of  the  poles, 
piers,  abutments,  or  conduits  or  in  the  height  of  the  wires  or  cables. 
.  .  .  No  order  of  the  mayor  and  aldermen  or  selectmen  shall  be 
required  for  renewing,  repairing  or  replacing  wires,  cables,  poles, 
piers,  abutments,  conduits  or  fixtures  once  erected  or  constructed 
under  the  provisions  of  law,  or  for  making  house  connections  or 
connections  between  duly  located  conduits  and  distributing  poles." 

See,  however,  Acts  of  191 1,  Chapter  509,  Section  7, 
hereinbefore  referred  to,  whereby  regulation  of  trans- 
mission lines  running  from  one  city  or  town  into  another 
is  made  subject  to  the  Board  of  Gas  and  Electric  Light 
Commissioners,  or,  in  case  of  railway  companies,  the 
Railroad  Commissioners. 
Regulations  The  only  limit  placed  on  the  power  of  the  proper  au- 
must  be        thorities   to   regulate  is   that   such  regulation   shall  be 

reasonable.  ,  m 

reasonable;  and  what  is  reasonable  is,  as  already 
stated,  a  question  for  a  jury  under  instructions  from  the 
Court.  Such  was  the  construction  of  our  Supreme  Court 
in  the  cases  of  Young  v.  Yarmouth,  9  Gray,  386,  and 
Pierce  v.  Drew,  136  Mass.  75;  and  such  was  the  con- 
struction of  the  attorneys  of  the  various  electric  companies 
at  the  hearings  before  a  committee  of  the  Legislature  0. 
1 89 1,  when  it  was  proposed  to  pass  laws  by  which  fullei 
power  of  regulation  might  be  exercised.     It  was  then 


ELECTRIC  LINES  IN  PUBLIC  WAYS  27 

argued  by  the  representatives  of  the  companies  that 
the  mayor  and  aldermen  and  the  selectmen  already  had 
full  power  for  all  reasonable  regulation,  and  that  further 
legislation  would  either  have  no  effect  or  would  give  power 
for  unreasonable  regulation. 

Accordingly,  if  there  are  two  or  three  lines  of  telegraph  Consolidation 
and  telephone  poles  in  streets  in  which  you  are  interested,  of  wres' 
when  one  or  two  would  do  as  well,  petition  the  mayor 
and  aldermen  or  the  selectmen  to  order  them  to  be  con- 
solidated. If  the  poles  of  a  single  line  are  too  numerous 
or  in  inconvenient  places,  or  are  crooked  and  unsightly, 
or  if  the  poles  unnecessarily  interfere  with  growing  trees, 
whether  shade  trees  or  fruit  trees,  petition  for  such  change 
as  you  deem  reasonable.  You  may  want  to  build  a  house 
on  a  vacant  lot  in  front  of  which  are  poles  and  wires  in 
such  position  as  to  be  very  unsightly  and  inconvenient. 
It  is  not  "reasonable"  that  they  be  allowed  to  remain 
there  unless  it  is  impracticable  to  change  their  position. 

In  view  of  these  facts  it  is  apparent  that  the  use  of  the 
highways  by  these  companies  should  be  allowed  to  en- 
croach as  little  as  possible  upon  the  ordinary  and  natural 
uses  of  highways  and  of  the  adjoining  land,  and  that 
regulation  seeking  so  to  limit  them  is  entirely  reasonable. 

The  question  of  burying   wires  is  a  very  serious  and  Placing  wires 
important  one,  not  only  in  all  our  cities,  but  in  many  uaderground- 
of  our  suburban  towns.     In  many  streets  the  lines  cannot 
exist  above-ground  except  as  a  practical  nuisance.     In 
many  cities  and  towns,  and  in  parts  of  Europe,  most  of 
the  wires  are  now  underground. 

Apparently,  the  question  of  compelling  the  companies 


28  THE  LAW  OF  THE  ROADSIDE 

to  bury  their  wires  in  any  specified  streets  is  the  same 
question  heretofore  discussed;  viz.,  Is  this  reasonable 
regulation  under  the  circumstances  of  this  particular 
case?  The  companies  object  that  the  process  of  bury- 
ing is  very  expensive.  To  this  may  be  answered  that, 
though  the  primary  expense  is  larger,  the  secondary 
expenses  of  maintenance  and  repairs  are  much  less. 
Storms  are  continually  breaking  down  poles  and  wires, 
to  the  great  danger  of  the  public,  to  the  injury  of  the 
service,  and  to  the  enormous  expense  of  the  companies. 

Doubtless  the  burying  of  the  lines  in  all  the  more 
populous  sections  will  soon  be  regarded  as  not  only 
reasonable  but  necessary  regulation.  The  question  of 
the  authority  of  the  mayor  and  aldermen  and  of  the 
selectmen,  under  the  existing  statutes,  to  compel  the  bury- 
ing of  wires,  has  never  been  tested  before  our  Supreme 
Court;  but  it  is  not  believed  that  the  companies  would 
contest  the  power  on  any  ground  other  than  that,  in  the 
specific  case,  such  requirement  would  be  unreasonable. 
Special  statutes  have  been  passed  by  the  Legislature 
from  time  to  time  relating  to  particular  cities,  requiring 
all  wires  in  certain  streets  specified  in  the  statute,  or  to 
be  designated  by  certain  city  officials,  to  be  placed  under- 
ground. No  attempt  is  made  to  treat  these  statutes  in 
this  pamphlet. 

After  the  Bedford  Street  fire  in  Boston  on  Thanks- 
giving Day,  1890,  the  Legislature  passed  an  act  for  the 
better  regulation  of  wires  in  cities,  which,  as  subsequently 
revised,  may  be  quoted  in  full  (Revised  Laws,  Chap. 
122,  Sees.  16-19): — 


ELECTRIC  LINES  IN  PUBLIC  WAYS  29 


"Protection  and  Marking  or  Wires. 

"Section  16.  A  person  or  a  corporation,  private  or  municipal, 
owning  or  operating  a  line  of  wires  over  or  under  streets  or  huildings 
in  a  city  or  town  shall  use  only  strong  and  proper  wires  safely  at- 
tached to  strong  and  sufficient  supports  and  insulated  at  all  points 
of  attachment;  shall  remove  all  wires  the  use  of  which  is  abandoned; 
shall  properly  insulate  every  wire  where  it  enters  a  building,  and,  if 
such  wire  is  other  than  a  wire  designed  to  carry  an  electric  light, 
heat  or  power  current,  shall  attach  to  it  at  a  proper  point  in  the  cir- 
cuit, near  the  place  of  entering  the  building,  and  so  situated  as  to 
avoid  danger  from  fire,  an  appliance  adapted  at  all  times  to  prevent 
a  current  of  electricity  of  such  intensity  or  volume  as  to  be  capable 
of  injuring  electrical  instruments  or  of  causing  fire  from  entering  the 
building  by  means  of  such  wire  beyond  the  point  at  which  such 
appliance  is  attached;  and  shall  properly  insulate  every  wire  within 
a  building  which  is  designed  to  carry  an  electric  light,  heat  or  power 
current. 

"Section  17  (as  amended  Acts  1911,  Chap.  509,  Sec.  3).  Such 
person  or  corporation  shall  plainly  mark  each  pole,  pier,  abut- 
ment, or  other  fixture  supporting  wires'  or  cables  containing  wires 
over  streets  or  buildings  with  the  name  or  initials  of  the  owner  of 
such  pole,  pier,  abutment,  or  other  fixture.  Wherever  cross  arms  or 
other  appliances  for  the  support  of  wires  or  cables  belonging  to 
different  owners  are  attached  to  the  same  pole,  pier,  abutment  or 
other  fixture,  every  such  cross  arm  or  other  appliance  shall  be 
plainly  tagged  or  marked  with  the  name  or  initials  of  the  owner 
thereof.  Wherever  wires  or  cables  belonging  to  different  owners 
are  attached  to  the  same  cross  arm  or  other  appliances  for  the  sup- 
port of  wires  or  cables,  every  wire  or  cable  shall  be  tagged  or  marked 
with  the  name  or  initials  of  the  owner  at  or  near  its  point  of  attach- 
ment to  such  cross  arm  or  other  appliance.  No  such  tag  or  mark 
shall  be  required  for  the  wires,  poles,  piers,  abutments  and  other 
fixtures  of  a  street  railway  or  electric  railroad  company,  except  for 
its  feed  wires  supported  by  poles  carrying  wires  or  cables  belonging 
to  another  owner  and  for  its  poles  supporting  wires  or  cables  belong- 


30  THE    LAW    OF    THE    ROADSIDE 

ing  to  another  owner  and  for  poles  belonging  jointly  to  the   street 
railway  company  and  another  owner. 

"Officers  to  Supervise  Wires. 

"Section  18.  A  city  shall,  by  ordinance,  designate  or  provide  for 
the  appointment  of  an  inspector  of  wires,  and  any  town  may,  at  an 
annual  town  meeting,  instruct  its  selectmen  to  appoint  such  an 
inspector.  Such  inspector  shall  supervise  every  wire  over  or  under 
streets  or  buildings  in  such  city  or  town  and  every  wire  within  a 
building  which  is  designed  to  carry  an  electric  light,  heat  or  power 
current,  shall  notify  the  person  or  corporation  owning  or  operating 
any  such  wire  whenever  its  attachments,  insulation,  supports  or 
appliances  are  improper  or  unsafe,  or  whenever  the  tags  or  marks 
thereof  are  insufficient  or  illegible,  shall,  at  the  expense  of  the  city 
or  town,  remove  every  wire  the  use  of  which  has  been  abandoned 
and  every  wire  which  is  not  tagged  or  marked  as  hereinbefore  re- 
quired, and  shall  see  that  all  laws  and  regulations  relative  to  wires 
are  strictly  enforced.  A  city  or  town  may  recover  in  an  action  of 
contract  of  the  person  or  corporation  owning  any  wire  so  removed 
the  expense  which  it  has  incurred  for  the  removal  thereof. 

"Section  19.  The  supreme  judicial  court  or  the  superior  court 
shall  have  jurisdiction  in  equity  upon  petition  of  the  officer  or  in- 
spector designated  or  appointed  as  aforesaid,  to  enforce  the  provi- 
sions of  the  three  preceding  sections  and  to  restrain  the  use  or  main- 
tenance, or  to  cause  the  removal,  of  any  wire,  pole  or  other  support 
which  is  erected,  maintained  or  used  in  violation  of  the  provisions 
of  said  sections." 


This  act  is  aimed  especially  at  the  improper  insulation 
of  wires,  causing  danger  of  fires;  and  at  the  removal  of 
untagged  and  abandoned  wires.  Private  parties  fre- 
quently fail  to  remove  the  wires  of  an  abandoned  tele- 
phone line;    these  become  partially  detached,  fall  across 


ELECTRIC  LINES  IN   PUBLIC   WAYS  31 

a  "high  tension"  wire,  and  thus  communicate  fire  to 
some  building.  Unless  a  wire  is  tagged  so  as  to  show 
who  is  responsible  for  it,  it  should  be  removed  by  the 
inspector  mentioned  in  the  above  statute.  The  original 
act  applied  only  to  cities;  but  as  it  now  stands  any  town 
may  provide  for  the  appointment  of  an  inspector. 

A   further  act  passed  in    1895  (Revised  Laws,  Chap,  insulation  of 
122,  Sees.  20,  21)  requires  insulation  of  poles,  viz.: —  p01**" 

"Section  20  (as  amended  Acts  of  1911,  Chap.  509,  Sec.  4). 
Poles  and  other  structures  which  are  used  to  support  lines  for  the 
transmission  of  electricity  shall  be  insulated  in  such  manner  as  to 
protect  employees  and  other  persons  from  accidents.  If  such  poles 
and  other  structures  are  of  any  materials  except  wood,  and  support 
lines  which  are  operated  at  a  voltage  in  excess  of  two  thousand 
volts,  they  shall  be  plainly  and  conspicuously  marked,  'Dangerous. 
Keep  Away.'  The  officer  and  inspector  of  wires  appointed  under 
the  authority  of  section  eighteen  of  said  Chap.  122  or  the  com- 
missioner of  wires  of  the  city  of  Boston  shall  enforce  the  provisions 
of  this  section,  and  he  shall  be  the  sole  judge  of  what  constitutes  a 
proper  insulation  and  marking. 

"Section  21.  A  person  or  corporation  owning  poles  which  are 
used  for  the  transmission  of  electricity  who  fails  to  comply  with 
the  provisions  of  the  preceding  section  shall  be  punished  by  a  fine 
of  not  less  than  ten  nor  more  than  one  hundred  dollars  for  every 
pole  left  uninsulated  for  an  unreasonable  time  after  a  request  for  a 
proper  insulation  by  the  officer,  inspector  or  commissioner  acting 
under  the  provisions  of  the  preceding  section." 


Sections  28,  29,  and  30  of  Chapter  122  of  the  Revised 
Laws  contain  some  further  regulations  made  by  the  Leg- 
islature;-— 


32 


THE  LAW  OF  THE  ROADSIDE 


Wires  not  to 
interfere  with 
moving  of 
buildings. 


"Section  28  (as  amended  Acts  of  191 1,  Chap.  509,  Sec.  6). 
Whenever,  in  order  to  move  a  building  or  for  any  other  necessary 
purpose,  a  person  desires  that  the  wires  of  any  such  company  be 
cut,  disconnected  or  removed,  the  company  shall  forthwith  cut,  dis- 
connect or  remove  the  same,  if  the  person  desiring  this  to  be  done 
has  first  left  a  written  statement,  signed  by  him,  of  the  time  when, 
and  the  place,  described  by  reference  to  the  crossings  of  streets  or 
highways,  where  he  wishes  to  remove  said  wires,  at  the  office  of  the 
company  in  the  town  in  which  such  place  is  situated,  twenty-four 
hours  before  the  time  so  stated,  or,  if  there  is  no  such  office,  if  he  has 
deposited  such  statement  in  the  post  office,  properly  prepaid,  and 
directed  to  the  company  at  its  office  nearest  to  said  place,  three 
days  before  the  time  mentioned  in  said  statement.  If  the  company 
neglects  or  refuses  to  cut,  disconnect  or  remove  wires  as  hereinbefore 
provided,  the  inspector  of  wires,  or  the  selectmen  of  a  town  where 
there  is  no  inspector  of  wires,  may  cause  the  same  to  be  cut,  discon- 
nected or  removed,  and  the  city  or  town  may  recover  of  the  company 
in  an  action  of  contract  the  expense  of  so  doing. 

"Section  29.  Whoever  wilfully  cuts,  disconnects,  removes,  or 
otherwise  interrupts  the  use  of  the  wires  of  any  such  company, 
without  first  giving  notice  as  provided  in  the  preceding  section,  shall 
be  punished  as  provided  in  section  twenty-seven.* 

"Section  30.  The  provisions  of  the  two  preceding  sections  shall 
not  apply  to  any  wires  attached  to  poles  which  have  not  been  erected 
in  compliance  with  the  provisions  of  law." 


*  Section  27.  Whoever  unlawfully,  and  intentionally  injures,  molests  or  de- 
stroys any  line,  wire,  pole,  pier  or  abutment,  or  any  of  the  materials  or  property  of 
any  street  railway  company,  of  any  electric  railroad  company,  or  of  any  city  or  town 
engaged  in  the  manufacture  and  sale  of  electricity  for  light,  heat  or  power  or  of  any 
company,  owner  or  association  described  in  sections  one  and  twenty-five  shall  be 
punished  by  a  fine  of  not  more  than  five  hundred  dollars  or  by  imprisonment  for  not 
more  than  two  years,  or  by  both  such  fine  and  imprisonment;  and  whoever  shall  do 
any  of  the  acts  prohibited  by  this  section  between  the  hours  of  four  o'clock  in  the 
afternoon  and  seven  o'clock  in  the  morning  shall  be  punished  by  a  fine  of  not  more 
than  one  thousand  dollars  or  by  imprisonment  for  not  more  than  four  years,  or 
by  both  such  fine  and  imprisonment.     (As  amended  Acts  1908,  Chap.  233.) 


ELECTRIC  LINES  IN  PUBLIC  WAYS  S3 

Revised  Laws,   Chapter   53,   Section    5,    provides  as  Removal  of 

follows:-  unused  poles. 

"The  aldermen  in  cities  or  the  selectmen  in  towns  may  cause  the 
removal  from  public  ways  and  places  of  unused  poles,  wires,  struct- 
ures or  other  appliances,  at  the  expense  of  the  owners  thereof." 


These  sections  indicate  that  the  purpose  of  the  Legis- 
lature is  to  keep  the  use  of  the  highways  by  the  electric 
companies  subordinate  to  their  other  more  usual  and 
natural  uses.  Companies  must  run  the  risk  of  being 
obliged  to  cut  their  wires,  so  that  buildings  may  be  moved 
through  the  highways,  and  the  statute  merely  provides 
that  they  shall  have  twenty-four  hours'  notice,  so  that 
they  may  provide  means  to  prevent  the  interruption  of 
their  business.  Section  30  is  probably  merely  declaratory 
of  what  would  be  the  law  anyway;  i.e.,  unless  the  lines 
are  legally  within  the  highway,  any  one  may  remove 
them,  without  notice  to  the  company,  if  such  lines  inter- 
fere with  any  proper  use  which  he  desires  to  make  of  the 
highway.  Practically,  however,  it  is  better  to  give  the 
company  notice.  We  should  recognize  that,  while  these 
companies  are  an  injury  to  our  streets,  yet  they  are  on 
the  whole  beneficial  to  the  public,  and  that  we  are  all 
more  or  less  dependent  upon  the  services  they  render. 


34  THE  LAW  OF  THE  ROADSIDE 


Section  3.     DAMAGES. 

Damages  to  If  we  must  have  poles  and  electric  wires  in  our  public 
abutters.  wavS)  it  is  of  great  interest  and  importance  to  determine 
whether  we  may  recover  in  damages  for  the  injury  done 
us.  For  this  the  law,  since  1884,  seems  to  be  fairly 
adequate.  Section  3  of  Chapter  122  of  the  Revised  Laws 
is  as  follows: — 

"Section  3.  An  owner  of  land  which  abuts  upon  a  public  way 
along  which  telegraph  or  telephone,  electric  light,  heating  or  power 
lines  are  constructed,  erected  or  altered  in  location  or  construction 
by  any  telegraph  or  telephone,  electric  light,  heating  or  power 
company,  whose  property  is  injuriously  affected  or  diminished 
in  value  by  occupation  of  the  ground  or  of  the  air,  or  otherwise 
by  such  construction,  erection  or  alteration,  whether  such  owner  is 
also  the  owner  of  the  fee  in  such  way  or  not,  may,  within  three 
months  after  such  construction,  erection  or  alteration,  apply  to  the 
mayor  and  aldermen  of  the  city  or  selectmen  of  the  town  in  which 
such  land  is  situated  to  assess  and  appraise  his  damages.  Before 
entering  upon  the  service,  the  mayor  and  aldermen  or  selectmen  shall 
severally  be  sworn  faithfully  and  impartially  to  perform  the  duties 
herein  required.  They  shall,  upon  view,  make  a  just  appraisal  in 
writing  of  the  loss  or  damage,  if  any,  to  the  applicant,  sign  dupli- 
cates thereof,  and  on  demand  deliver  one  copy  to  the  applicant  and 
the  other  to  the  company  or  its  agent.  If  damages  are  assessed, 
the  company  shall  pay  them  and  the  costs  of  the  appraisers.  If  the 
appraisers  find  that  the  applicant  has  suffered  no  damage  he  shall 
pay  said  costs.  The  mayor  and  aldermen  and  selectmen  shall  each 
receive  two  dollars  a  day  for  services  performed  as  appraisers." 

This  statute  was  passed  in  consequence  of  the  decision 
of  the  Supreme  Court  in  1883  in  Pierce  v.  Drew,  136 
Mass.  75,  that  under  existing  laws  an  additional  servi- 


ELECTRIC  LINES  IN   PUBLIC  WAYS  35 

tude  was  not  imposed  by  the  appropriation  of  a  public 
highway  for  the  use  of  a  telegraph  line;  and  that  conse- 
quently the  owner  of  the  fee  of  the  street  was  not  en- 
titled to  any  additional  compensation,  when  his  land, 
previously  in  use  by  the  public  for  street  purposes,  was 
also  used  as  a  location  for  an  electric  company.  Two  of 
the  judges  of  the  Supreme  Court  dissented  from  this 
decision,  and  the  Legislature  was  evidently  of  the  opinion 
that,  if  the  law  did  not  give  a  land  owner  damages  when 
a  quiet  country  road  in  which  he  owned  the  fee  was 
subsequently  filled  with  unsightly  poles  heavily  loaded 
with  wires,  the  law  was  wrong,  and  accordingly  passed 
the  above  statute.  The  change  made  in  such  highways 
by  these  companies  is  well  expressed  by  the  following 
quotation  from  the  dissenting  opinion  in  the  case  of 
Pierce  v.  Drew  above  referred  to: — 

"When  a  telegraph  line  consisted  of  only  a  single  row  of  small 
posts,  with  a  few  wires,  the  matter  was  of  less  importance.  But 
common  observation  shows  that  now  the  posts  are  large  and  numer- 
ous, fitted  with  cross-beams  adapted  for  layer  after  layer  of  almost 
countless  wires;  and  the  establishment  of  the  different  kinds  of 
electrical  lines  involves  to  some  extent  a  destruction  of  trees  along 
the  highways  or  streets,  an  occupation  of  the  ground,  a  filling  of 
the  air,  an  interference  with  access  to  or  escape  from  buildings,  an 
increased  difficulty  in  putting  out  fires,  an  obstruction  of  the  view, 
a  presentation  of  unsightly  objects  to  the  eye,  and  a  creation  of 
unpleasant  noises  in  the  wind.  The  actual  injury  thus  done  to 
adjoining  property  may  certainly  be  quite  serious." 

Note  that  this  statute  gives  a  remedy  in  damages,  not 
only  when  a  line  is  constructed,  but  when  any  alteration 


36  THE  LAW  OF  THE  ROADSIDE 

is  made  either  in  location  or  construction,  and  also  if  the 
land  owner's  property  is  "injuriously  affected  or  dimin- 
ished in  value  by  occupation  of  the  ground  or  of  the  air 
or  otherwise,"  and  that  whether  he  is  the  owner  of  the 
fee  of  the  highway  or  not.  Consequently,  it  is  not  neces- 
sary, in  order  to  entitle  you  to  damages,  that  the  boundary 
of  your  land  should  be,  as  is  usually  the  case,  in  the  middle 
of  the  highway.  If  your  land  merely  abuts  upon  the 
highway,  and  you  are  injured  by  any  construction  or 
alteration  in  an  electric  line,  you  are  entitled  to  dam- 
ages. If  no  damages  are  awarded  by  the  city  or  town 
officers,  the  land  owner  must  pay  the  costs  of  the  apprais- 
ers. "The  mayor  and  aldermen  and  selectmen  shall 
each  receive  two  dollars  a  day  for  services  performed  as 
appraisers."     Revised  Laws,  Chap.  122,  Sec.  3. 

A  person  who  is  aggrieved  by  the  assessment  of  his 
damages  may  have  the  damages  determined  by  a  jury, 
as  in  the  case  of  damages  for  laying  out  highways.  Re- 
vised Laws,  Chap.  122,  Sec.  5;  Revised  Laws,  Chap. 
48,  Sec.  80.  If  the  jury  gives  the  land  owner  no  more 
than  the  municipal  authorities  gave  him,  he  must  pay 
the  costs  of  the  jury  trial.  If  the  jury  does  give  him 
more,  the  company  must  pay  the  costs.  You  should 
remember  that  you  must  apply  for  damages  within  three 
months  after  the  alteration  or  construction  causing  the 
injury,  otherwise  your  claim  is  barred. 

When  a  company  sends  its  men  along  the  line  to  put 
in  new  poles  or  string  new  wires,  if  these  men  injure 
your  trees,  then  is  the  time  to  apply  for  damages.  The 
destruction  or  mutilation  of  a  beautiful  tree  is  really  an 


ELECTRIC  LINES  IN  PUBLIC  WAYS  37 

injury  not  only  to  the  owner,  but  to  all  who  pass  along 
that  highway. 

If  damages  are  awarded  against  a  company  under  the 
above  Section  3,  and  it  fails  to  pay  the  same  within  thirty 
days  after  demand,  the  mayor  and  aldermen  or  selectmen 
may,  upon  request  of  the  person  in  whose  favor  such 
damages  were  assessed,  remove  all  the  poles,  wires,  or 
other  structures  of  such  company  from  that  portion  of 
the  street  or  way  upon  which  the  land  of  such  person  abuts; 
but  before  doing  this  they  must  leave  a  written  state- 
ment at  the  office  of  such  company  in  such  city  or  town 
of  the  time  when  and  the  place  where  they  intend  to 
remove  such  poles,  wires,  or  structures,  not  less  than 
forty-eight  hours  prior  to  such  removal.  If  such  com- 
pany has  no  office  in  such  city  or  town,  the  notice  must 
be  deposited  in  the  post-office,  postage  prepaid,  and 
directed  to  such  company  at  its  office  in  some  city  or  town 
in  the  county.  The  city  or  town  may  recover  the  expense 
of  such  removal  from  the  company. 

The  land  owner,  however,  is  not  confined  to  this 
remedy,  but  may  also  enforce  the  collection  of  damages 
according  to  the  usual  legal  methods.  See  Revised  Laws, 
Chap.  122,  Sec.  4. 

In  this  connection  it  may  be  noted  that,  if  a  company  Action  of  tort, 
has  complied  with  all  necessary  formalities  in  regard  to 
its  location,  but  constructs  or  maintains  its  lines  in  such 
a  way  as  to  do  unnecessary  damage  to  trees  or  other 
private  property,  the  proper  remedy  may  be  an  action 
of  tort  rather  than  a  petition  under  the  above  statute. 
See  Aldworth  v.  Lynn,  153  Mass.  53.     The  three  months' 


travellers. 


38  THE  LAW  OF  THE  ROADSIDE 

statute  of  limitation  would  not  apply  to  such  an  action. 
Under  certain  circumstances  the  land  owner  might  recover 
triple  damages.     See  Revised  Laws,  Chap.  185,  Sec.  7. 

An  electric  company  has  no  right  to  cut  or  trim  shade 
trees  standing  in  the  public  way,  even  when  absolutely 
necessary  to  the  erection  of  its  lines,  except  by  comply- 
ing with  the  statutes  for  protection  of  shade  trees  as 
outlined  in  Chapter  II.  of  this  pamphlet.  If  any  cutting 
of  trees  or  trimming  of  branches  is  required  to  make 
room  for  their  poles  or  wires,  they  should  apply  to  the 
tree  warden  in  a  town,  or  other  official  having  charge  of 
trees  in  a  city,  to  take  such  action  as  may  be  necessary, 
Damages  to  Highways  must  be  kept  by  the  town  reasonably  safe 
and  secure  for  the  passage  of  persons  and  teams.  Al 
though  the  municipal  authorities  may  permit  electric 
companies  to  run  their  lines  through  the  highways,  such 
companies  must  not  incommode  the  public  use  of  high 
ways  or  public  roads.     Revised  Laws,  Chap.  122,  Sec.  1 

If,  however,  an  electric  company  places  its  poles  in 
accordance  with  the  specifications  made  by  the  mayor 
and  aldermen  or  by  the  selectmen,  and  a  traveller  is 
injured  by  colliding  with  one  of  such  poles,  a  delicate 
question  arises  as  to  the  liability  of  the  company  and 
also  as  to  whether  the  town  may  be  liable  for  such  injury 
on  the  ground  that  it  is  caused  by  a  defect  in  the 
highway. 

In  Young  v.  Yarmouth,  9  Gray,  386,  a  decision  made 
in  1854,  it  was  held  that  the  town  was  not  liable,  and  thai 
it  was  not  competent  for  the  jury  to  find  that  a  telegrapr 
post  placed  in  the  highway  by  permission  of  the  selectmer 


ELECTRIC  LINES  IN  PUBLIC  WAYS  39 

was  a  defect  such  as  would  render  the  town  liable  to  any 
one  injured  thereby;  but  afterwards  the  statute  was 
changed,  and  now  reads  as  follows: — 

"A  telegraph,  company  shall  be  liable  in  damages  to  a  person  in- 
jured in  his  person  or  property  by  the  poles,  wires  or  other  apparatus 
of  such  company.  If  they  are  erected  upon  a  public  way,  the  city 
or  town  shall  not,  by  reason  of  anything  contained  in  this  chapter 
or  done  thereunder,  be  discharged  from  its  liability,  but  all  damages 
and  costs  recovered  against  it  on  account  of  such  injury  shall  be  re- 
imbursed by  the  company  which  owns  the  poles,  wires  or  other  ap- 
paratus."    Revised  Laws,  Chap.  122,  Sec.  15. 

By  virtue  of  the  above  statute,  applicable  only  to  tele- 
graph companies,  such  a  company  is  liable  for  injuries 
caused  by  the  presence  of  its  poles  or  wires  in  the  high- 
way, irrespective  of  negligence  on  its  part,  and  although 
it  has  erected  them  strictly  in  accordance  with  the  loca- 
tion granted  it.  Riley  v.  N.  E.  Tel.  &  Tel.  Co.,  184  Mass. 
150.  If  such  poles  or  wires  are  so  erected  as  to  cause  an 
obstruction  of  the  highway,  the  city  or  town  may  be  liable 
for  injuries  caused  by  them,  but  under  the  terms  of  the 
above  statute  may  recover  over  from  the  telegraph  com- 
pany all  damages  and  costs  recovered  against  it.  Com- 
panies, other  than  telegraph  companies,  are  probably  not 
liable  unless  negligent  in  the  erection  or  maintenance  of 
their  poles  or  wires;  and  cities  and  towns  are  probably 
not  liable  for  injuries  caused  by  such  poles  or  wires,  even 
though  they  constitute  an  obstruction,  if  erected  in  accord- 
ance with  the  grant  of  location.  Young  v.  Yarmouth,  9 
Gray,  386;    Riley  v.  Tel.   Co.,   184  Mass.   150.     In  no 


40  THE  LAW  OF  THE  ROADSIDE 


event  can  any  recovery  be  had  against  either  the  city  or 
town  or  the  company,  unless  the  plaintiff  was  in  the 
exercise  of  due  care. 

If  a  telegraph  pole  should  fall  down  and  break  your 
fence  or  injure  your  trees,  you  may  recover  from  the 
company.  In  this  case  you  could  not  recover  from  the 
town,  as  the  injury  would  not  be  in  consequence  of  a 
defect  in  the  highway  as  a  place  of  passage.  In  the  case 
of  a  pole  of  a  company  other  than  a  telegraph  company, 
it  would  be  necessary  to  show  negligence  on  the  part  of 
the  company. 


CHAPTER  II. 
SHADE  TREES  IN  PUBLIC  WAYS. 

People  in  America  are  gradually  coming  to  realize  the 
pleasure  and  profit  of  good  roads.  Many  of  our  so-called 
"roads"  have,  in  the  past,  been  mere  tracks  of  sand  or 
mud,  according  to  the  weather,  along  which  teams  and 
people  could,  at  best,  pass  without  imminent  danger  of 
catastrophe.  Along  with  the  improvement  in  the  road- 
beds has  come  a  realization  of  the  advantage  and  pleasure 
of  shade  trees  within  the  limits  of  the  public  way.  As  a 
result  of  this,  a  knowledge  of  the  law  in  relation  to  trees 
in  public  ways  is  now  important,  not  only  to  the  owners 
of  land,  but  also  to  city  and  town  officials.  The  follow- 
ing is  an  attempt  to  state  briefly  and  clearly,  with  cita- 
tions of  the  chief  authorities,  the  law  on  this  subject  as 
it  exists  within  the  Commonwealth  of  Massachusetts. 

It  should  be  noted,  in  the  first  place,  that  ordinarily  Ownership 
the  public  has  only  a  right  of  way  or  easement  in  the  land  of  fee" 
comprised  within  the  limits  of  a  public  way.  The  fee 
of  the  land  is  still  in  the  original  owner,  or  in  those  claim- 
ing title  under  him.  Whenever  land  is  conveyed,  de- 
scribed as  bounding  on  a  street  or  road,  such  conveyance, 
unless  a  contrary  intention  expressly  appears,  carries 
title  to  the  middle  of  such  street  or  road  if  the  grantor's 
ownership   extends   so   far.     Boston   v.   Richardson,    13 


42  THE    LAW    OF    THE    ROADSIDE 

Allen,  146,  154.  The  law  on  this  point  is  very  clearly 
stated  in  the  case  of  Tucker  v.  Eldred,  6  R.  I.  404,  where 
the  Court  said: — 

"By  the  general  rules  of  law  the  public  have  but  an  easement 
upon  the  land  lying  within  the  lines  of  a  highway.  Notwithstanding 
the  laying  out  of  the  highway  and  the  condemnation  of  the  land 
to  the  use  of  the  public  for  travel,  the  title  to  the  soil,  and  all  the 
profits  thereof  consistent  with  the  existence  of  the  easement,  remain 
in  the  original  owner.  He  has  a  right  to  the  freehold  and  to  all  the 
profits  which  may  be  derived  from  it,  consistently  with  the  right  of 
passage  of  the  public, — to  all  mines  beneath  the  surface,  to  all  trees, 
grass,  and  pasturage  upon  and  above  the  surface.  Perley  v.  Chand- 
ler, 6  Mass.  454." 

The  effect  of  the  statutes  in  relation  to  trees  in  the 
public  ways  may  be  said,  as  a  whole,  to  be  to  extend  the 
rights  of  the  public  as  against  those  of  the  owner  of  the 
fee,  so  that  now  the  public  has,  not  merely  the  right  of 
passing  to  and  fro,  but  a  further  right, — that  such  passing 
be  rendered  pleasant  by  the  shade  and  ornament  of  trees. 

We  may  consider  this  subject  advantageously  under 
the  following  subdivisions: — 

Section   1.     TREES    AND     BUSHES    STANDING    WITHIN 
THE    LIMITS    OF    THE    PUBLIC  WAYS. 

Recent  statutes  have  greatly  simplified  the  law  with 
regard  to  trees  and  bushes  in  highways  and  other  public 
places,  which  had  been  left  by  successive  statutes  in  great 
confusion. 

Every  town  must  now  at  its  annual  meeting  in  every 


SHADE    TREES    IN    PUBLIC    WAYS  43 

year  elect  a  tree  warden  for  the  ensuing  year.  Revised  Tree  wardens. 
Laws,  Chap.  11,  Sec.  334.  There  is  no  such  general 
statute  with  regard  to  cities,  but  it  is  assumed  that  the 
charter  of  every  city  confers  on  some  official  the  care  of 
public  shade  trees,  and  the  general  statutes,  hereinafter 
referred  to,  confer  and  impose  on  such  officials  the  same 
powers  and  duties  as  those  of  the  tree  wardens  in  towns, 
except  as  hereinafter  noted. 
Revised  Laws,  Chapter  51,  Section  10,  is  as  follows: — 

"The  officer  who  has  the  care  of  the  trees  belonging  to  a  city  or 
town  and  his  assistants,  but  no  other  person,  .  .  .  may,  and  if  re- 
quired by  the  surveyors  or  road  commissioners  shall,  trim  or  lop  off 
trees,  except  public  shade  trees  in  towns,  and  bushes  standing  in  ways, 
and,  if  ordered  by  a  vote  of  the  mayor  and  aldermen,  selectmen  or 
road  commissioners  passed  after  public  notice  and  hearing,  shall 
cut  down  and  remove  such  trees  and  bushes.  The  surveyors  and 
road  commissioners  shall  cause  whatever  obstructs  such  ways,  or 
endangers,  hinders  or  incommodes  persons  travelling  thereon  to  be 
removed;     .      .      .     ". 

The  first  clause,  it  will  be  seen,  applies  to  all  trees  and 
bushes  standing  in  ways  in  cities,  but  excepts  public 
shade  trees  (elsewhere  defined  as  meaning  all  shade  trees 
within  or  on  the  limits  of  a  public  way,  Revised  Laws, 
Chap.  53,  Sec.  12;  Acts  1910,  Chap.  321)  in  towns. 
Its  applicability  in  towns  would  therefore  seem  to  be  con- 
fined to  bushes  and  such  trees  as  are  not  shade  trees, 
and  of  course  only  to  those  standing  in  public  ways.  It 
does  not  apply  to  trees  standing  outside  the  boundaries 
of  public  ways,  even  though  the  branches  extend  out  over 
such  a  way.     The  tree  warden  has  no  authority  to  cut 


44  THE  LAW  OF  THE  ROADSIDE 

or  trim  such  trees  without  the  owners'  consent,  but  the 
surveyors  or  road  commissioners  may,  under  the  last 
clause  of  the  section,  cause  parts  of  such  trees  to  be  re- 
moved if  they  obstruct  the  way  or  incommode  travellers 
thereon.     Commonwealth  v.  Byard,  200  Mass.  175. 

This  section  restricts  the  authority  of  surveyors  or  road 
commissioners  to  requiring  the  tree  warden  to  trim  or 
lop  off  the  trees  and  bushes  in  public  ways  above  enum- 
erated and  to  removing  obstructions.  It  gives  the  tree 
warden  (or  similar  officer  in  cities)  discretion  to  trim  such 
trees  and  bushes  and  the  right  to  cut  them  down  when 
ordered  by  the  mayor  and  aldermen,  selectmen  or  road 
commissioners,  after  public  notice  and  hearing,  but  not 
otherwise. 

Revised  Laws,  Chapter  53,  Sections  12,  13,  are  as 
follows: — 

Authority  of  "Section  12.    The  tree  warden  may  appoint  and  remove  deputy 

tree  wardens,  tree  wardens.  He  and  they  shall  receive  such  compensation  as  the 
town  determines  or,  in  default  thereof,  as  the  selectmen  allow.  He 
shall  have  the  care  and  control  of  all  public  shade  trees  in  the  town, 
except  those  in  public  parks  or  open  places  under  the  jurisdiction  of 
the  park  commissioners,  and  of  those,  if  so  requested  in  writing  by  the 
park  commissioners,  and  shall  enforce  all  the  provisions  of  law  for 
the  preservation  of  such  trees.  He  shall  expend  all  money  appro- 
priated for  the  setting  out  and  maintenance  of  such  trees,  but  no 
trees  shall  be  planted  within  the  limits  of  a  public  way  without  the 
approval  of  the  tree  warden,  and  until  a  location  therefor  has  been 
obtained  from  the  selectmen,  or  from  the  road  commissioners  where 
authority  has  been  vested  in  them.  Regulations  for  the  care  and 
preservation  of  public  shade  trees  made  by  him,  approved  by  the 
selectmen  and  posted  in  two  or  more  public  places,  imposing  fines 
and  forfeitures  of  not  more  than  twenty  dollars  in  any  one  case,  shall 


SHADE  TREES  IN  PUBLIC  WAYS  45 

have  the  force  and  effect  of  town  by-laws.  All  shade  trees  within 
or  on  the  limits  of  a  public  way  shall  be  public  shade  trees;  and  when 
it  appears  in  any  civil  proceeding  under  process  of  law  where  the 
ownership  of  or  rights  in  the  tree  are  material  to  the  issue,  that  from 
length  of  time  or  otherwise,  the  boundaries  of  the  highway  cannot  be 
made  certain  by  the  records  or  by  monuments,  and  for  that  reason 
it  is  doubtful  whether  the  tree  was  within  or  without  the  limits  of 
the  highway,  it  shall  be  taken  to  have  been  within  the  limits  of  the 
highway  until  the  contrary  is  shown."  (As  amended  Acts  1910, 
Chap.  321.) 

"Section  13.  Public  shade  trees  shall  not  be  cut  or  removed,  Cutting  of  public 
in  whole  or  in  part,  except  by  the  tree  warden  or  his  deputy  or  by  a  snade  trees- 
person  holding  a  license  so  to  do  from  the  tree  warden,  nor  shall  they 
be  removed  by  the  tree  warden  or  his  deputy  or  other  person  without 
a  public  hearing  at  a  suitable  time  and  place,  after  notice  thereof 
posted  in  two  or  more  public  places  in  the  town  and  upon  the  tree 
and  after  authority  granted  by  the  tree  warden  therefor.  Whoever 
violates  the  provisions  of  this  section  shall  forfeit  not  less  than  five 
nor  more  than  one  hundred  dollars  to  the  use  of  the  town."  As 
amended  Acts  1908,  Chap.  296,  Sec.  3. 


Acts  of  1910,  Chapter  363,  Section  1,  confers  and  im- 
poses the  powers  and  duties  of  tree  wardens,  under  the 
above  Sections  12  and  13,  upon  the  officials  in  cities 
charged  by  the  charters  or  ordinances  of  said  cities  with 
the  care  of  shade  trees  within  the  limits  of  the  highway. 

The  above  Section  13,  as  the  law  now  stands,  governs 
the  cutting  and  removing  of  public  shade  trees  (i.e., 
all  trees  within  or  on  the  limits  of  any  public  way)  in 
whole  or  in  part,  both  in  cities  and  towns.  Such  cutting 
or  removal  may  be  done  only  by  the  tree  warden  or  his 
deputy  or  one  licensed  by  him,  and  only  after  public  notice 
and  hearing.     So  far  as  towns  are  concerned,  this  is  now 


46  THE  LAW  OF  THE  ROADSIDE 

the  only  provision  as  to  cutting  shade  trees.  It  seems 
reasonable  to  suppose,  however,  that  the  requirement 
for  notice  and  a  hearing  does  not  apply  to  such  trimming 
as  the  health  and  development  of  the  trees  may  require.  : 
Probably  Section  12,  above  quoted,  is  broad  enough  to 
leave  this  to  the  discretion  of  the  tree  warden,  under  the 
general  power  of  care  and  control.  It  is  believed  that 
this  general  power  probably  extends  also  to  lopping  off 
branches,  when  required  to  keep  the  way  free  from  ob- 
struction. Such  authority  to  trim  and  lop  off  public 
shade  trees  in  his  discretion  is,  as  we  have  already  seen, 
expressly  granted  to  the  warden  or  similar  officer  in  cities 
by  Section  10  of  Chapter  51. 

To  recapitulate  briefly,  the  present  law  as  to  trees  and 
bushes  within  the  public  ways  seems  to  be  as  follows: — 

1st.    Cutting  and  trimming. 

(a)  Shade  trees. 

Only  the  tree  warden  (including  in  that  designation 
similar  officers  in  cities)  or  his  deputy  or  licensee  may  cut, 
remove,  trim,  or  lop  off  shade  trees. 

He  may  only  cut  or  remove  them  in  whole  or  in  part 
after  public  notice  and  a  hearing.  In  cities  he  must  cut 
or  remove  them  if  ordered  by  vote  of  the  mayor  and 
aldermen  after  public  notice  and  hearing,  but  apparently 
may  act  without  such  vote.  In  towns  he  is  independent 
of  other  officers  in  this  regard. 

(b)  Bushes  and  trees  other  than  shade  trees. 

The  care  of  these  in  towns  was  formerly  imposed  upon 
the  town  forester  (Revised  Laws,  Chap.  53,  Sec.  14),  but 


SHADE  TREES  IN  PUBLIC    WAYS  47 

this  office  was  abolished  by  Acts  of  1907,  Chapter  475, 
Section  10.  The  only  provision  of  law  now  applicable  is 
Section  10  of  Chapter  51,  Revised  Laws,  above  quoted. 
By  this  section  the  tree  warden  (or  similar  officer  in  cities) 
may  trim  or  lop  off  such  trees  and  bushes  in  his  discretion, 
and,  if  ordered  by  the  highway  surveyor  or  road  com- 
missioners, must  do  so.  He  must  cut  down  and  remove 
them  if  ordered  by  vote  of  the  mayor  and  aldermen, 
selectmen  or  road  commissioners,  after  public  notice  and 
hearing,  but  unless  so  ordered  apparently  has  no  authority 
to  do  so. 

(c)  Only  surveyors  and  road  commissioners,  in  the  ex- 
ercise of  their  duty  to  keep  the  ways  clear  of  obstructions, 
may  cut  or  trim  trees  on  private  land  overhanging  the 
way. 

2d.     Planting  of  trees  in  public  ways. 

The  tree  warden  (or  similar  official  in  cities)  shall 
expend  all  money  appropriated  for  this  purpose.  (Sec. 
12  of  Chap.  53,  above.) 

No  tree  shall  be  planted  without  his  approval,  nor  shall 
it  be  planted  by  him  or  any  other  person  until  a  location 
therefor  has  been  obtained  from  the  selectmen  or  road 
commissioners,  if  any. 

The  extension  of  this  section  to  cities  by  Acts  1910, 
Chapter  363,  presumably  makes  a  location  from  the  mayor 
and  aldermen  a  prerequisite  to  planting  trees  in  public 
ways  in  cities. 


48 


THE  LAW  OF  THE  ROADSIDE 


Section  2.     TREES    AND    BUSHES    IN    PARKS. 


Park 
commissioners. 


In  cities  and  towns  having  park  commissioners,  control 
of  the  whole  subject-matter  covered  by  the  various  sec- 
tions above  cited  is  vested  in  the  park  commissioners 
in  places  under  their  jurisdiction  (Revised  Laws,  Chap.  28, 
Sec.  4;  Chap.  53,  Sec.  15),  except  thac  the  care  and  con- 
trol of  public  shade  trees  in  those  places  is  conferred  upon 
the  tree  warden,  if  he  is  requested  in  writing  by  the  park 
commissioners  to  assume  the  same.  Revised  Laws,  Chap. 
53,  Sec.  12,  amended  Acts  1910,  Chap.  321.  Where  the 
park  commissioners  have  jurisdiction,  they  are  probably 
subject  to  the  same  requirements  as  to  public  notice 
and  hearing  with  regard  to  cutting  trees  in  public  ways, 
as  have  been  above  set  forth.  They  are,  however,  entirely 
independent  of  the  mayor  and  aldermen,  selectmen,  or 
other  officials. 


Section  3.    TREES   AND    BUSHES    IN    STATE 
HIGHWAYS. 

Revised  Laws,  Chapter  47,  Section  n,  provides: — 

"Said  commission  (i.e.  the  Massachusetts  Highway  Commission) 
shall  keep  all  state  highways  reasonably  clear  of  brush,  shall  cause 
suitable  shade  trees  to  be  planted  thereon  if  practicable."  .   .    . 


Section  21  provides: — 

"No  state  highway  shall  be  dug  up  .  .  .  and  no  trees  shall  be 
planted  or  removed  .  .  .  without  the  written  permit  of  the  highway 


SHADE  TREES  IN  PUBLIC  WAYS  49 

commission,  and  then  only  in  accordance  with  the  regulations  of  said 
commission." 

Acts  1905,  Chapter  279,  Section  1  (as  amended  Acts 
1908,  Chap.  297,  Sec.  1)  provides: — 

"Section  i.    The  highway  commission  shall  have  the  exclusive    Highway 
care  and  control  of  all  trees,  shrubs  and  growths  within  the  limits  of    Commission, 
state  highways,  and  may  trim,  cut  or  remove  such  trees,  shrubs  and    tree       ,  ■  ubs 
growths,  or  license  the  trimming,  cutting  or  removal  thereof.     No   within  State 
such  tree,  shrub  or  other  growth  shall  be  trimmed,  cut  or  removed   highways. 
by  any  person,  other  than  an  agent  or  employee  of  the  commission, 
whether  such  person  is  or  is  not  the  owner  of  the  fee  in  the  land  on 
which  such  tree,  shrub  or  growth  is  situated,  except  upon  a  permit 
in  writing  from  said  commission:  provided,  however,  that  if  the  com- 
mission shall  refuse  to  issue  a  permit  to  any  such  owner  to  cut  or 
remove  any  such  tree,  shrub  or  other  growth,  the  damages,  if  any, 
sustained  by  him  shall  be  determined  by  said  commission  and  paid 
by  the  commonwealth.     Any  person  aggrieved  by  the  action  of  the 
commission  as  to  the  trimming,  cutting,  removal  or  retention  of  any 
such  tree,  shrub  or  other  growth,  or  as  to  the  amount  awarded  to 
him  for  the  same  by  the  commission,  may  have  the  damages,  if  any, 
which  he  has  sustained,  determined  by  the  superior  court  for  the 
county  in  which  the  said  tree,  shrub  or  other  growth  is  or  was  situ- 
ated, upon  a  petition  filed  for  the  purpose,  in  the  same  manner  as  for 
the  taking  of  land  for  ways,  and  his  damages,  so  determined,  shall 
be  paid  by  the  commonwealth." 


This  section,  it  will  be  seen,  leaves  the  entire  matter 
of  planting,  cutting,  and  trimming  all  trees  and  bushes 
within  the  limits  of  State  highways  to  the  sole  care  and 
discretion  of  the  Highway  Commission.  The  right  is 
reserved,  however,  to  the  owner  of  the  fee  in  the  highway 
to  recover  damages,  if  not  permitted  to  remove  any  tree 


5Q 


THE  LAW  OF  THE  ROADSIDE 


or  shrub  which  he  may  consider  injurious  to  his  property, 
and  if  dissatisfied  with  the  award  of  the  Commission  the 
land  owner  may  petition  the  Superior  Court  for  the 
assessment  of  damages  by  a  jury.  Probably  such  petition 
must  be  filed  within  a  year  from  the  refusal  of  the  Com- 
mission to  permit  the  removal.  See  Revised  Laws, 
Chap.  48,  Sects.  28,  80,  109. 


Owner  of  fee. 


Must  petition 
tree  warden  for 
right  to  cut  or 
remove  trees. 


Section  4.    THE    RIGHTS    OF    THE    OWNER    OF 
THE    FEE    OF    THE    WAY. 

The  rights  of  the  owner  of  the  fee  of  a  public  way  over 
the  trees  standing  therein  have  been  gradually  abridged 
until  he  has  very  few  left.  Under  Revised  Laws,  Chapter 
53,  Section  12,  as  amended,  quoted  above,  he  may  plant 
trees  within  the  way  only  with  the  approval  of  the  tree 
warden  and  after  obtaining  a  location  therefor  from  the 
municipal  authorities,  and  those  trees  can  only  be  re- 
moved after  public  notice  and  a  hearing  as  above  set 
forth,  and  an  adjudication  that  public  necessity  requires 
such  removal. 

If  you  are  the  owner  of  the  fee  of  a  public  way  and 
desire  to  remove  a  tree,  whether  it  was  planted  as  a  shade 
tree  or  not,  you  should  apply  to  the  town  tree  warden 
(or  similar  officer  in  a  city)  to  grant  you  a  license  to  do 
so,  after  public  notice  and  a  hearing.  In  case  of  his 
refusal  you  may  apply,  in  a  city  to  the  mayor  and  alder- 
men to  order  him  to  remove  it,  or  in  a  town  to  the  select- 
men or  road  commissioners,  if  it  is  not  a  shade  tree.  The 
distinction  between  shade  trees  and  others,  however,  is 


SHADE  TREES  IN  PUBLIC  WAYS  5 1 

not  always  easy  to  draw.  If,  as  may  sometimes  occur, 
the  town  officers  require  such  tree  to  be  retained,  and  you 
are  damaged  by  such  retention  (e.g.,  if  the  tree  is  seri- 
ously shading  your  building  or  garden,  or  is  in  a  position 
where  you  desire  to  make  a  driveway,  or  is  otherwise 
injuring  you),  you  might  formerly  apply  for  damages 
as  you  would  in  case  of  an  alteration  in  a  highway.  See 
Revised  Laws,  Chap.  53,  Sec.  7.  But  this  section  was 
repealed  by  Acts  1910,  Chapter  363,  and  apparently  the 
land  owner  now  has  no  redress  in  such  a  case,  except  in 
the  case  of  State  highways,  as  above  noted. 

While  the  owner  of  the  fee  may  not  himself  trim  or  cut 
down  trees  in  the  public  ways,  he  has  full  protection 
against  their  mutilation  or  destruction  by  the  town 
officers  or  others  without  his  having  a  chance  to  be  heard. 

In  White  v.  Godfrey,  97  Mass.  472,  a  suit  was  brought 
against  the  superintendent  of  streets  for  cutting  off  the 
limbs  of  a  tree  in  order  to  move  an  engine-house  belong- 
ing to  the  city,  which  the  city  council  had  ordered  to 
be  moved  to  another  location.  No  application  for  a 
license  to  move  it  was  made,  as  provided  in  the  ordi- 
nances, but  no  more  of  the  tree  was  cut  than  was  neces- 
sary; and  the  owner  of  the  tree  recovered  damages 
from  the  superintendent. 

See  also  Chase  v.  Lowell,  149  Mass.  85,  a  case  where 
the  shade  tree  statutes  had  rather  a  surprising  effect. 
The  plaintiff  was  injured  while  walking  along  the  side- 
walk by  a  tree  being  blown  over  and  striking  him, 
knocking  him  senseless.  It  appeared  that  the  tree  was 
rotten   and  had  been   dangerous  for  some  time.     The 


52 


THE  LAW  OF  THE  ROADSIDE 


judge  in  instructing  the  jury  assumed  that  the  highway 
surveyor  had  authority  to  cut  down  and  remove  the 
tree.  The  case  went  to  the  Supreme  Judicial  Court, 
and  it  was  held  that  the  surveyor  had  no  such  authority, 
but  that  his  power  under  the  statutes  then  in  force  was 
limited  to  making  complaint  and  obtaining  a  vote  of  the 
mayor  and  aldermen,  selectmen  or  road  commissioners 
(Sec.  2  of  Chap.  123  of  Acts  of  1885),  and  that,  until  he 
had  obtained  such  authority  to  remove  the  tree,  his  duty 
was  merely  to  take  reasonable  precautions  to  protect 
the  public  from  danger  by  its  falling.  At  the  subsequent 
trial  of  the  case  the  plaintiff  recovered  on  the  ground 
that  such  reasonable  precautions  had  not  been  taken. 
Chase  v.  Lowell,  151  Mass.  422. 


Section  5.     CRIMINAL    OFFENCES   AND    PENALTIES. 


Wanton 
destruction  of 
trees  or  shrubs. 


The  following  are  certain  statutes  making  illegal  inter- 
ference with  trees  in  ways  a  criminal  offence,  and  prescrib- 
ing certain  punishments.  These  statutes  frequently  fur- 
nish an  effectual  and  sometimes  the  only  remedy  for  such 
interference. 

Revised  Laws,  Chapter  208,  Sections  101,  102: — 

"Section  ioi.  Whoever  wantonly  injures,  defaces  or  destroys 
a  shrub  or  plant  or  an  object  or  fixture  of  ornament  or  utility  in  a 
public  way  or  place  or  in  any  enclosure  shall  forfeit  not  less  than  five 
nor  more  than  one  hundred  dollars,  one-half  to  the  use  of  the  com- 
plainant and  one-half  to  the  use  of  the  owner  of  the  property  injured, 
defaced  or  destroyed."     As  amended  Acts  1902,  Chap.  544,  Sec.  31. 

"Section  102.     Whoever  wantonly  injures,  defaces  or  destroys 


SHADE  TREES  IN  PUBLIC  WAYS  53 

an  ornamental  or  shade  tree  in  a  public  way  or  place,  or  negligently 
or  wilfully  suffers  an  animal,  driven  by  or  for  him  or  belonging  to  him 
and  lawfully  in  a  public  way  or  place,  to  injure,  deface  or  destroy  such 
tree,  or  whoever,  by  any  other  means,  negligently  or  wilfully  injures, 
defaces  or  destroys  such  tree,  shall  forfeit  not  less  than  five  nor  more 
than  one  hundred  dollars,  one-half  to  the  use  of  the  complainant  and 
one-half  to  the  use  of  the  city  or  town  in  which  said  act  is  committed; 
and  shall  in  addition  thereto  be  liable  to  said  city  or  town  or  other 
person  interested  in  said  tree  for  all  damages  caused  by  such  act." 
As  amended  Acts  1902,  Chap.  544,  Sec.  32. 

"Wantonly"  probably  means  nothing  more  than  a 
careless  indifference  to  the  rights  of  others,  such  as  is 
sometimes  shown  by  the  linemen  of  electric  companies 
when  they  cut  shade  trees  standing  near  dwellings,  for 
the  purpose  of  getting  a  free  space  for  their  lines. 

Section  101  furnishes  an  excellent  remedy  for  such 
abuses  as  this,  as  well  as  for  the  wanton  injury  sometimes 
done  out  of  pure  malice. 

Section  102  applies  to  the  stupid  and  careless  people 
who  hitch  their  horses  to  shade  trees,  as  well  as  to  the 
roaming  (country)  cow. 

Section  104  of  the  same  chapter  (as  amended  by  Acts  Advertising 
1905,  Chap.  279,  Sec.  2)  reads: —  SIgns' 

"  Section  104.  Whoever  affixes  to  a  tree  in  a  public  way  or  place 
a  playbill,  picture,  announcement,  notice,  advertisement  or  other 
thing,  whether  in  writing  or  otherwise,  or  cuts,  paints  or  marks 
such  tree,  except  for  the  purpose  of  protecting  it  and  under  a  written 
permit  from  the  officer  having  the  charge  of  such  trees  in  a  city  or 
from  the  tree  warden  in  a  town,  or  from  the  highway  commission  in 
the  case  of  a  state  highway,  shall  be  punished  by  a  fine  of  not  more 
than  fifty  dollars  for  each  offence.  In  towns  the  tree  warden  shall 
enforce  the  provisions  of  this  section  and  of  the  preceding  two  sec- 


54  THE  LAW   OF  THE   ROADSIDE 

tions:  provided,  however,  that  should  he  fail  to  act  in  the  case  of  a 
state  highway  within  thirty  days  after  the  receipt  by  him  of  a 
complaint  in  writing  from  the  Massachusetts  highway  commission, 
said  commission  may  proceed  to  enforce  the  provisions  of  this  section." 

Section  115,  which  covers  the  case  of  signs  on  trees  and 
other  private  property  whether  within  or  without  the 
highway,  is  quoted  at  p.  69. 

The  following  statute  applies  to  advertising  signs  in 
public  parks  and  parkways  and  also  such  signs  as  may 
be  near  to  and  visible  from  such  parks  and  parkways. 
It  is  by  no  means  limited  to  signs  on  trees. 

Acts  of  1903,  Chapter  158: — 

Advertising  "Section  i.     The  metropolitan  park  commission  and  the  officer 

signs  in  or  near  or  officers  having  charge  of  public  parks  and  parkways  in  any  city 
public  parks.  or  town  mav  make  sucn  reasonable  rules  and  regulations  respecting 
the  display  of  signs,  posters  or  advertisements  in  or  near  to  and 
visible  from  public  parks  and  parkways  entrusted  to  their  care,  as 
they  may  deem  necessary  for  preserving  the  objects  for  which  such 
parks  and  parkways  are  established  and  maintained. 

"  Section  2.  The  commission  or  officers  aforesaid  shall  give  notice 
of  all  rules  and  regulations  made  by  them  under  authority  of  this 
act  by  posting  the  same  in  three  or  more  public  places  in  the  city 
or  town  in  which  the  public  park  or  parkway  is  situated,  and  by 
publishing  the  same  in  some  newspaper,  if  there  be  one,  published 
in  such  city  or  town.  Such  notice  shall  be  deemed  legal  notice  to 
all  persons. 

"Section  3.  Whoever  violates  any  rule  or  regulation  made  and 
published  as  aforesaid  shall  be  punished  by  a  fine  not  exceeding 
twenty  dollars  for  each  offence;  and  any  sign,  poster  or  advertise- 
ment erected  or  maintained  in  violation  of  any  such  rule  or  regula- 
tion shall  be  deemed  a  public  nuisance." 


SHADE  TREES  IN  PUBLIC  WAYS  55 

The  scope  of  regulations  which  may  lawfully  be  made 
under  this  statute,  so  far  as  they  relate  to  signs  outside 
of  such  parks,  though  visible  therefrom,  is  greatly  lim- 
ited by  the  decision  in  Commonwealth  v.  Boston  Adver- 
tising Co.,  188  Mass.  348,  where  it  was  held  that  a  regu- 
lation prohibiting  ordinary  advertising  signs,  not  immoral, 
indecent,  or  dangerous,  is  unconstitutional,  because  the 
statute  makes  no  provision  for  compensation  to  the  land 
owner. 

See  also  Revised  Laws,  Chapter  208,  Section  115,  here- 
inafter quoted  in  the  chapter  on  Trespass,  which  gives 
to  any  person  the  easy  remedy  of  removing  or  obliter- 
ating signs  unlawfully  placed  within  the  limits  of  a  public 
way. 

Acts  of  1905,  Chapter  279,  Section  3  (as  amended  Acts  interfering  with 
1908,  Chap.  297,  Sec.  2),  provides  for  the  punishment  of  ^t^e 
persons    illegally  interfering  with   trees  and    shrubs    on  highways. 
State  highways,  as  follows: — 

"Section  3.  Whoever  without  authority  cuts  down,  trims  or 
removes  a  tree,  shrub  or  growth  within  the  limits  of  a  state 
highway,  or  maliciously  injures,  defaces  or  destroys  any  such  tree, 
shrub  or  growth  shall  forfeit  not  less  than  five  nor  more  than  one 
hundred  dollars  to  the  use  of  the  commonwealth."  As  amended 
Acts  1908,  Chap.  297,  Sect.  2. 

By  Section  1 2  of  Chapter  53  of  the  Revised  Laws,  Posting  of 
quoted  above  at  page  44,  regulations  made  by  the  tree  £jf  tree°warden  ^ 
warden  (or  similar  officer  in  cities)  for  the  care  and  preser- 
vation of  public  shade  trees,  when  approved  by  the  select- 
men and  posted  in  two  or  more  public  places,  imposing 


56  THE    LAW    OF    THE    ROADSIDE 

fines  and  forfeitures  of  not  more  than  twenty  dollars  in 
any  one  case,  are  given  the  force  and  effect  of  town  by- 
laws. 

Section  13  of  the  same  chapter,  also  quoted  at  page  45, 
regulating  the  cutting  of  public  shade  trees,  provides  a 
penalty  of  not  less  than  five  nor  more  than  one  hundred 
dollars  to  the  use  of  the  town  for  a  violation  of  its  pro- 
visions. 


CHAPTER   III. 

LAWS     RELATIVE    TO    INSECT    PESTS,    WITH 
ESPECIAL   REFERENCE  TO  THE   ROADSIDE. 

Revised  Laws,  Chapter  25,  Section  16,  is  as  follows: — 

"Section  16.  Towns  may  appropriate  money  to  be  expended  Appropriations, 
under  the  direction  of  the  tree  warden  for  exterminating  insect  pests 
in  the  public  ways  and  places  and  for  removing  therefrom  trees  and 
plants  upon  which  such  insects  naturally  breed,  except  trees  and 
plants  from  which  the  owner  or  lessee  of  land  abutting  on  said  public 
way  or  place  annually  exterminates  all  such  insect  pests  to  the  satis- 
faction of  the  tree  warden." 

So  far  as  removal  of  shade  trees  is  concerned,  the  tree 
warden  should  of  course  comply  with  the  various  stat- 
utes hereinbefore  referred  to. 

Acts  of  1902,  Chapter  57,  authorizes  the  municipal 
officers  to  whom  the  care  of  public  shade  trees  is  intrusted 
(i.e.,  the  tree  warden  or  similar  officer)  to  enter  on  private 
land  to  investigate  the  brown  tail  moth,  elm  leaf  beetle, 
or  any  other  tree  or  shrub  destroying  pest  which  may 
be  discovered.  A  fine  is  provided  for  any  one  opposing 
such  entry.  A  provision  for  damages  originally  included 
in  this  statute  was  subsequently  repealed.  Acts  of  1905, 
Chap.  381,  Sec.  10. 

Revised  Laws,  Chapter  208,  Section  108,  is  as  follows: — 


58 


THE  LAW  OF  THE  ROADSIDE 


"Section  108.  Whoever  knowingly  brings  the  insects  which  are 
known  as  the  ocneria  dispar  or  gypsy  moth  or  as  the  brown-tail 
moth,  or  their  nests  or  eggs,  into  this  commonwealth,  or  whoever ' 
knowingly  transports  said  insects  or  their  eggs  or  nests  from  one  city 
or  town  to  another  city  or  town  in  the  commonwealth,  except  when 
engaged  in,  and  for  the  purpose  of,  destroying  them  shall  be 
punished  by  a  fine  of  not  more  than  two  hundred  dollars  or  b> 
imprisonment  for  not  more  than  sixty  days,  or  by  both  such  fine 
and  imprisonment." 


Act  of  1 90s 
gypsy  and  brown 
tail  moths. 


State  Forester's 
powers. 


Local 
superintendent. 


Acts  of  1905,  Chapter  381,  is  entitled  "An  Act  to  pro- 
vide for  suppressing  the  gypsy  and  brown  tail  moths." 

Section  1  declares  said  moths,  their  pupae,  nests,  eggs, 
and  caterpillars  to  be  a  public  nuisance  for  the  purposes 
of  the  act. 

Section  2  established  the  office  of  superintendent,  bul 
this  office  was  abolished,  and  the  work  of  suppressing 
these  pests  placed  in  charge  of  the  State  Forester  b) 
Acts  of  1909,  Chapter  263. 

Section  3  (as  amended  Acts  1906,  Chap.  268,  Sec.  1 
1908,  Chap.  591,  Sec.  1)  prescribes  the  duties  of  this 
officer.  He  is  empowered  to  make  rules  and  regulations 
subject  to  the  governor's  approval,  governing  all  opera 
tions  by  cities,  towns,  or  individuals  under  the  act.  H< 
and  his  agents  may  enter  on  private  land. 

Section  4  (as  amended  Acts  1906,  Chap.  268,  Sec.  2 
1907,  Chap.  521,  Sec.  1;  1910,  Chap.  150,  Sec.  1)  require 
the  mayor  and  aldermen  or  selectmen  annually  in  Marcl 
or  April  to  appoint,  subject  to  approval  by  the  Stati 
Forester,  a  local  superintendent  for  the  suppression  0 
the  gypsy  and  brown  tail  moths,  whose  duty  it  is,  unde 


LAWS  RELATIVE  TO  INSECT  PESTS  59 

the  advice  and  general  direction  of  the  State  Forester, 
to  destroy  the  eggs,  caterpillars,  pupae,  and  nests  of 
these  insects  within  the  city  or  town,  except  in  parks  and 
other  property  under  the  control  of  the  Commonwealth, 
and  except  in  private  property,  save  as  hereinafter  noted. 
This  section  places  on  the  local  superintendent  the 
duty  of  destroying  these  pests  within  all  public  ways, 
except  apparently  State  highways,  and  on  town  property. 
In  State  highways  the  work  is  left  under  the  control  of 
the  Highway  Commission  by  virtue  of  the  statutes  cited 
in  the  last  chapter,  and  the  Legislature  has  made  special 
annual  appropriations  for  that  work.  It  is  not  unusual, 
however,  for  the  Commission  to  employ  the  local  super- 
intendent to  do  the  work  on  its  behalf. 

Any  city  or  town  spending  over  $5,000  in  any  year  for  Reimbursement 
these  purposes  may  be  reimbursed  by  the  Commonwealth  of  towns- 
to  the  extent  of  50  per  cent,  of  such  excess,  on  filing  vouch- 
ers as  required  by  this  section.     In  certain  cases  a  greater 
amount  of  reimbursement  may  be  had.     For  details  see 
Section  4  of  the  Act  as  amended. 

By  Section  5  (as  amended  Acts  1906,  Chap.  268,  Sec.  3;  Action  by  state 
1907,  Chap.  521,  Sec.  2;  1911,  Chap.  474)  the  State  Forester- 
Forester,  if  in  his  opinion  any  city  or  town  is  not  spending 
enough  for  this  work  or  is  not  conducting  it  properly, 
may  order  such  city  or  town  to  spend  such  amount,  within 
certain  prescribed  limits,  as  he  may  deem  necessary,  and 
in  such  manner  as  he  may  with  the  governor's  consent 
prescribe.  A  fine  of  a  hundred  dollars  a  day  may  be 
imposed  on  the  city  or  town  for  failure  to  comply  with 
his  directions. 


6o  THE  LAW  OF  THE  ROADSIDE 

The  State  Forester  may  also  with  the  governor's  con 
sent,  in  case  of  emergency  or  great  danger  due  to  th 
neglect  of  a  city  or  town,  himself  carry  on  this  work  ii 
such  city  or  town,  the  expense,  less  any  amount  due  a 
reimbursement  from  the  Commonwealth,  to  be  assesse< 
as  an  additional  State  tax.     He  is  further  empowered 
with  like  consent,  in  case  of  emergency,  to  spend  a  limitec 
amount  of  the  State  appropriation  in  parks  not  under  th 
control  of  the  Commonwealth  and  in  cemeteries,  wood 
land,  and  other  places  of  public  resort.     He  may  also  tak 
complete  control  of  the  work  of  suppression  in  such  citie 
and  towns  as  may,  through  the  proper  officials,  reques 
it,  the  cost  to  be  collected  from  the  city  or  town  as 
additional  State  tax.     The  expense  to  any  city  or  to 
however,  is  limited  in  accordance  with  the  provisions  o: 
Section  4,  above  cited. 
On  private  land.       Section  6  (as  amended  Acts  1906,  Chap.  268,  Sec.  4 
1908,  Chap.  591,  Sec.  2)  is  concerned  with  the  suppres- 
sion of  the  pests  on  private  property.     Under  this  sectior. 
the  mayor  or  selectmen  shall  annually  on  or  before  Novem- 
ber 1,  and  at  other  times,  if  they  see  fit,  give  notice  tc 
the  owners  of  all  infected  lands,  requiring  the  destruc- 
tion of  the  moths  and  their  eggs,  caterpillars,  etc.,  within 
a  given  time.     If,  however,  in  the  opinion  of  the  mayoi 
or  selectmen,  the  cost  of  doing  this  work  on  any  contig- 
uous tract  of  land  owned  by  the  same  individual  would 
exceed  a  half  of  one  per  cent,  of  the  assessed  valuation 
of  the  land,  then  the  land  owner  shall  only  be  required 
to  do  it  on  a  designated  part  of  his  property;  and  it  may 
be  noted  that  there  is  no  provision  for  the  work  being 


LAWS  RELATIVE  TO  INSECT  PESTS  61 

done  by  any  one  on  the  remainder  of  the  property.  The 
inevitable  result  is  that  in  the  case  of  tracts  of  woodland 
on  which  there  are  no  buildings,  or  only  buildings  of  small 
value,  so  that  the  assessed  valuation  of  the  whole  is  low, 
the  greater  part  of  the  tract  may  be  entirely  uncared  for, 
so  far  as  these  pests  are  concerned.  If  the  land  owner 
fails  to  carry  out  the  requirements  of  the  notice,  the  city 
or  town  must  do  the  work  and  assess  the  actual  cost  upon 
the  owner,  not  to  exceed,  however,  half  of  one  per  cent, 
of  the  assessed  valuation  of  the  land.  Any  additional 
sums  required  must  be  spent  by  the  town,  subject  to  the 
right  of  reimbursement  by  the  Commonwealth,  as  pro- 
vided above.  Entry  on  private  lands  for  purposes  of 
investigation  is  permitted. 

Section  7  (as  amended  Acts  1906,  Chap.  268,  Sec.  5;  Assessments. 
1907,  Chap.  521,  Sec.  3)  authorizes  the  local  assessors  to 
assess  upon  any  land  which,  in  their  opinion,  has  been 
benefited  by  work  done  thereon  by  the  State  Forester  or 
'the  city  or  town  beyond  the  general  advantage  to  all 
land  in  the  city  or  town,  the  amount  of  such  benefit,  not 
exceeding  half  of  one  per  cent,  of  the  assessed  valuation 
of  the  land,  less  the  amount  actually  spent  by  the  land 
owner  in  good  faith  for  the  suppression  of  the  moths 
during  the  preceding  year.  The  land  owner,  if  dissat- 
isfied with  the  amount  of  the  assessment,  may  appeal  to 
the  superior  court  within  thirty  days  after  he  has  had 
actual  notice  of  the  assessment,  and  the  matter  will  be 
determined  by  that  court  without  a  jury.  The  local 
assessors  are  given  authority  to  abate  an  assessment 
laid  against  a  land  owner   whom    they  believe   to   be 


62  THE  LAW  OF  THE  ROADSIDE 

unable  to   pay    the   same,   owing    to   age,   infirmity,  or 
poverty. 

This  whole  Section  7  does  not  appear  to  be  of  great 
importance,  because  Section  6  provides  for  exacting  pay- 
ment from  individuals  in  most,  if  not  all  cases  where  work 
is  done  by  the  public  authorities  on  private  land,  without 
the  necessity  of  proceeding  under  Section  7. 

Assessments  made  under  either  of  the  above  sections 
are  included  in  the  annual  tax  bills  and  are  to  all  intents 
and  purposes  a  part  of  the  real  estate  tax  and  may  be 
collected  in  the  same  manner. 

There  is  one  further  piece  of  important  legislation  in 
regard  to  this  general  subject, 
state  nursery        The  Legislature  in  1909  passed  an  act  (Acts  of  1909, 
Chap.   444)   providing  for  the  appointment  of  a   State 
nursery  inspector  and  prescribing  his  duties. 

Under  the  terms  of  this  act  the  inspector  or  his  deputies 
must  annually  inspect  all  nurseries  in  the  State,  and  give  a 
certificate  if  and  when  no  dangerous  insect  or  fungous  pests 
are  found  therein,  but  not  otherwise.  Dealers  other  than 
growers  are  required  to  obtain  licenses  from  the  in- 
spector. No  grower  or  dealer  may  sell  or  ship  nursery 
stock  within  the  State  unless  he  holds  such  a  certificate 
or  license,  and  each  shipment  must  be  accompanied  by 
a  copy  thereof  or  such  other  evidence  as  the  State  Board 
of  Agriculture  may  prescribe.  Dealers  outside  the  State 
before  shipping  nursery  stock  into  the  State  must  file  with 
the  inspector  copies  of  their  inspection  certificates  granted 
by  another  State  or  country,  and  receive  a  certificate 
from   the  inspector,  and   each   such  shipment  must  be 


inspector. 


LAWS  RELATIVE  TO  INSECT  PESTS  63 

accompanied  by  a  tag  furnished  by  the  inspector  to  such 
dealers.  Carriers  are  required  to  notify  the  inspector  of 
violations  of  this  regulation.  The  inspector  may  inspect 
all  shipments  and  destroy  them  if  infected. 

Section  8  provides  that  the  nursery  inspector  either 
personally  or  through  his  deputies  may  inspect  any  or- 
chard, field,  garden,  roadside,  or  other  place  where  trees, 
shrubs,  or  other  plants  are  growing  out  of  doors,  either  on 
public  or  private  land,  which  he  may  know  or  have  reason 
to  suspect  is  infested  with  the  San  Jose  scale  or  any  serious 
insect  pest  or  plant  disease  liable  to  cause  financial  loss 
to  adjoining  owners;  and  he  may  require  owners  of  trees 
or  shrubs  so  infested  to  abate  the  pest  within  a  given  time, 
and  upon  their  failure  to  do  so  may  enter  and  do  the 
work  himself,  in  which  case  the  cost  must  be  paid  by  the 
property  owner. 

It  should  be  noted,  however,  that  the  act  does  not  apply 
to  the  gypsy  or  brown  tail  moths  outside  of  places  where 
nursery  stock  is  grown  or  on  property  immediately 
adjoining  the  same. 

Any  land  owner  who  is  dissatisfied  with  any  order  of 
the  inspector  or  any  action  taken  by  him  may  appeal 
within  ten  days  to  the  secretary  of  the  State  Board  of 
Agriculture,  which  appeal  acts  as  a  stay  of  proceedings 
until  it  has  been  heard  and  decided  by  the  secretary  of 
said  Board,  whose  decision  is  final. 

Any  violation  of  this  act  or  interference  with  the  carry- 
ing out  of  its  provisions  is  made  a  misdemeanor,  subject 
to  fine. 


CHAPTER  IV. 
TRESPASS. 

Besides  the  laws  in  Chapters  I.  and  II.  in  relation  to 
electric  lines  and  to  shade  trees  in  public  ways,  there  are 
several  statutory  provisions  in  relation  to  trespasses  on 
land  which  are  of  general  interest  and  importance.  As 
the  object  of  compiling  this  little  pamphlet  is  to  put  in 
brief  and  convenient  form  the  law  by  means  of  which 
the  landscape  may  be  protected  from  unnecessary  dis- 
figurement, it  seems  well  that  the  statutes  by  which  owners 
of  private  estates  may  protect  those  estates  from  trespass 
should  be  cited.  Closely  connected  with  the  subject 
of  trespass  is  the  law  on  the  powers  and  duties  of  watch- 
men and  police  officers,  which  is  also  briefly  treated. 

Trespass  may  be  treated  either  as  a  criminal  or  as  a 
civil  offence. 

Section  1.     CRIMINAL  TRESPASS. 
Trespass  on  Revised  Laws,  Chapter  208,  Section  109,  is  as  follows: 

improved  land. 

"Whoever,  without  right,  enters  or  remains  in  or  upon  the  dwelling 
house,  buildings  or  improved  or  enclosed  land  of  another,  after  hav- 
ing been  forbidden  so  to  do  by  the  person  who  has  the  lawful  control 
of  said  premises,  either  directly  or  by  notice  posted  thereon,  shall  be 
punished  by  a  fine  of  not  more  than  twenty  dollars.     A  person  who 


TRESPASS  65 

is  found  committing  such  trespass  may  be  arrested  by  a  sheriff, 
I  deputy  sheriff,  constable,  watchman  or  police  officer  and  kept  in 
„  custody  in  a  convenient  place,  not  more  than  twenty-four  hours, 
1  Sunday  excepted,  until  a  complaint  can  be  made  against  him  for 
the  offence,  and  he  be  taken  upon  a  warrant  issued  upon  such  com- 
plaint." 

The  above  section  applies  only  to  the  case  of  trespass  on 
"buildings  or  improved  or  enclosed  land,"  not  the  forest 
unenclosed  and  unimproved.  A  man's  house  is  his 
castle.  The  law  protects  him  in  it  and  in  his  enclosed  or 
improved  land  by  giving  the  summary  and  drastic  remedy 
of  arrest  without  warrant.  Notice  that  the  "forbidding" 
may  be  by  posted  notice,  as  well  as  orally. 

The  following  statute  of  1890,  which  is  said  to  have 
been  passed  in  consequence  of  the  killing  of  Mr.  Cun- 
ningham in  Milton,  provides  for  the  case  of  trespass  on 
unenclosed  and  unimproved  land  (Revised  Laws,  Chap. 
208,  Sees,  no,  in): — 

"Section  iio.  Whoever,  without  right,  enters  upon  the  land  of  Firearms 
another  with  firearms,  with  intent  to  fire  or  discharge  them  thereon, 
and,  having  been  requested  by  the  owner  or  occupant  of  such  land 
or  by  his  agent  to  leave  such  land,  remains  thereon,  shall  be  punished 
by  a  fine  of  not  more  than  two  hundred  dollars  or  by  imprisonment 
for  not  more  than  two  months,  or  by  both  such  fine  and  imprison- 
ment. 

"Section  hi.  Whoever  wilfully  tears  down,  removes  or  defaces 
any  notice  posted  on  land  by  the  owner,  lessee  or  custodian  thereof, 
warning  persons  not  to  trespass  thereon,  shall  be  punished  by  a 
fine  of  not  more  than  twenty-five  dollars," 


66  THE  LAW  OF  THE  ROADSIDE 

Powers  of  j^  js  not  dear  that  a  watchman  would  have  the  right  to 

watchmen.  ,  ,  .      . 

arrest  without  a  "warrant  under  this  latter  statute.  The 
inferior  courts  of  Massachusetts  are  not  agreed  on  the  | 
question  whether  an  officer  may  arrest  without  a  warrant 
for  any  misdemeanor  committed  in  his  presence  or  whether 
he  may  so  arrest  only  in  case  the  misdemeanor  amounts 
to  a  breach  of  the  peace.  The  question  is  an  open  one, 
it  is  said,  among  the  police  authorities  of  Boston. 

In  this  condition  of  the  law  it  would  not  be  advisable 
for  an  officer  to  arrest  under  these  Sections  no  and  in, 
supra,  unless  the  circumstances  were  such  that  he  would 
be  willing  to  run  the  risk  (in  most  cases  slight)  of  a  suit 
for  false  imprisonment. 

"Watchman,"  as  used  in  the  above  statute,  does  not, 
of  course,  mean  an  employee  of  a  private  citizen  or  cor- 
poration delegated  to  guard  premises,  but  an  officer  ap- 
pointed by  the  mayor  and  aldermen  or  the  selectmen 
under  authority  of  Revised  Laws,  Chapter  31,  or  Re- 
vised Laws,  Chapter  25,  Section  94.  The  latter  section 
is  as  follows: — 

"Selectmen  may  appoint  police  officers  who  shall  have  all  the 
powers  of  constables  except  that  of  serving  and  executing  civil 
process,  who  shall  hold  office  during  the  pleasure  of  the  selectmen  and 
who,  when  on  duty,  may  carry  such  weapons  as  the  selectmen  shall 
authorize." 

Under  this  statute  selectmen  may,  and  often  do,  ap- 
point employees  of  corporations  and  of  private  citizens 
watchmen  or  police  officers  (practically  the  same  in 
authority).     Such  appointees  have  the  power  to  arrest. 


TRESPASS  67 

in  cases  of  trespass  to  improved  or  enclosed  land,  given 
by  Revised  Laws,  Chapter  208,  Section  109,  noted 
above. 

Watchmen  have,  besides,  the  general  authority  given 
by  Revised  Laws,  Chapter  31,  Section  2,  as  follows: — 

"The  watch  shall  suppress  and  prevent  all  disturbances  and  dis- 
orders. During  the  night  time,  they  may  examine  all  persons  abroad 
whom  they  have  reason  to  suspect  of  an  unlawful  design,  and  may 
demand  of  them  their  business  abroad  and  whither  they  are  going; 
may  disperse  any  assembly  of  three  or  more  such  persons;  and  may 
enter  any  building  to  suppress  a  riot  or  breach  of  the  peace  therein 
Persons  so  suspected  who  do  not  give  a  satisfactory  account  of  them- 
selves, persons  so  assembled  and  who  do  not  disperse  when  ordered, 
and  persons  making,  aiding  or  abetting  in  a  riot  or  disturbance,  may 
be  arrested  by  the  watch,  and  shall  thereupon  be  safely  kept,  by 
imprisonment  or  otherwise,  until  the  next  morning  and  then  taken 
before  a  police,  district  or  municipal  court  or  trial  justice  to  be  ex- 
amined and  prosecuted." 

Revised  Laws,  Chapter  208,  Sections  91  (affected  by  Miscellaneous 
Acts  191 1,  Chap.  173),  99  (amended  Acts  1904,  Chap. 
444,  Sec.  1),  100  (amended  Acts  1902,  Chap.  544,  Sec. 
30),  105,  106  (amended  Acts  1902,  Chap.  544,  Sec.  33), 
107,  115,  116,  and  121,  bear  upon  other  trespasses  to 
land. 

These  sections  are  as  follows:— 

"Section  91.     Whoever  wilfully  and  without  right  pulls  down    Wilfully 
or  removes  any  portion  of  a  stone  wall  or  fence  which  is  erected  or    removin8  stone 
maintained  for  the  purpose  of  enclosing  land  shall  be  punished  by  a 
fine  of  not  more  than  ten  dollars." 


statutory 
provisions. 


68 


THE  LAW   OF  THE   ROADSIDE 


(And  as  supplemented  by  Acts  of  1911,  Chapter  173):  — 


Wilfully  cutting 
down  or 

removing  timber 
or  removing 
other  property. 


Wilfully  injuring 
property  of 
another. 


"The  commissioners  on  fisheries  and  game  and  their  duly  au- 
thorized deputies  may  arrest  without  a  warrant  any  person  found 
in  the  act  of  wilfully  pulling  down  a  stone  wall  or  fence,  or  otherwise 
violating  the  provisions  of  section  ninety-one  of  chapter  two  hundred 
and  eight  of  the  Revised  Laws." 

"Section  99.  Whoever  wilfully  cuts  down  or  destroys  timber 
or  wood  standing  or  growing  on  the  land  of  another,  or  carries  away 
any  kind  of  timber  or  wood  cut  down  or  lying  on  such  land,  or  digs 
up  or  carries  away  stone,  ore,  gravel,  clay,  sand,  turf  or  mould  from 
such  land,  or  roots,  nuts,  berries,  grapes  or  fruit  of  any  kind  or  any 
plant  there  being,  or  cuts  down  or  carries  away  sedge,  grass,  hay  or 
any  kind  of  corn,  standing,  growing  or  being  on  such  land,  or  cuts 
or  takes  therefrom  any  ferns,  flowers  or  shrubs,  or  carries  away 
from  a  wharf  or  landing  place  any  goods  in  which  he  has  no  interest 
or  property,  without  the  license  of  the  owner  thereof,  shall  be  pun- 
ished by  imprisonment  for  not  more  than  six  months  or  by  a  fine  of 
not  more  than  five  hundred  dollars,  and  if  the  offence  is  committed 
on  the  Lord's  day  or  in  disguise  or  secretly  in  the  night  time  the  im- 
prisonment shall  not  be  less  than  five  days  nor  the  fine  less  than  five 
dollars. 

"Section  100.  Whoever  wilfully  and  maliciously  or  wantonly 
cuts  down,  destroys  or  injures  a  tree  which  is  not  his  own,  standing 
for  any  useful  purpose,  or  whoever  wilfully  and  maliciously  or  wan- 
tonly breaks  glass  in  a  building  which  is  not  his  own,  or  whoever  wil- 
fully and  maliciously  breaks  down,  injures,  mars  or  defaces  a  fence 
belonging  to  or  enclosing  land  which  is  not  his  own,  or  wilfully  and 
maliciously  throws  down  or  opens  a  gate,  bars  or  fence,  and  leaves 
the  same  down  or  open,  or  maliciously  and  injuriously  severs  from 
the  freehold  of  another  any  produce  thereof  or  anything  attached 
thereto,  shall  be  punished  by  imprisonment  for  not  more  than  six 
months  or  by  a  fine  of  not  more  than  five  hundred  dollars." 

"Section  105.  Whoever  wilfully  and  maliciously  enters  an 
orchard,  nursery,  garden  or  cranberry  meadow,  and  takes  away, 
mutilates  or  destroys  a  tree,  shrub  or  vine  or  steals,  takes  and  carries. 


TRESPASS 


69 


away  any  fruit  or  flower,  without  the  consent  of  the  owner  thereof, 
shall  be  punished  by  a  fine  of  not  more  than  five  hundred  dollars 
or  by  imprisonment  for  not  more  than  six  months. 

"Section  106.  Whoever  wilfully,  intentionally  and  without 
right  enters  upon  the  orchard,  garden  or  other  improved  land  of  an- 
other, with  intent  to  cut,  take,  carry  away,  destroy  or  injure  the 
trees,  grain,  grass,  hay,  fruit,  or  vegetables  there  growing  or  being, 
shall  be  punished  by,  imprisonment  for  not  more  than  six  months 
or  by  a  fine  of  not  more  than  five  hundred  dollars;  and  if  the  offence 
is  committed  on  the  Lord's  day,  or  in  disguise,  or  secretly  in  the  night 
time,  the  imprisonment  shall  not  be  less  than  five  days  nor  the  fine 
less  than  five  dollars. 

"Section  107.  Whoever,  having  the  charge  or  custody  of  sheep, 
goats,  cattle,  horses,  swine  or  fowl,  wilfully  suffers  or  permits  them 
to  enter  on,  pass  over  or  remain  on  any  orchard,  garden,  mowing 
land  or  other  improved  or  enclosed  land  of  another,  after  being  for- 
bidden in  writing  or  by  notice  posted  thereon  by  the  owner  or  occu- 
pant thereof,  or  by  the  authorized  agent  of  such  owner  or  occupant, 
shall  be  punished  by  a  fine  of  not  more  than  ten  dollars." 

"Section  115.  Whoever  paints,  or  puts  upon,  or  in  any  manner 
affixes  to,  any  fence,  structure,  pole,  rock  or  other  object  which  is  the 
property  of  another,  whether  within  or  without  the  limits  of  the 
highway,  any  words,  device,  trademark,  advertisement  or  notice 
which  is  not  required  by  law  to  be  posted  thereon,  without  first 
obtaining  the  written  consent  of  the  owner  or  tenant  of  such  property, 
shall,  upon  complaint  of  such  owner,  or  of  his  tenant,  or  of  any  muni- 
cipal or  public  officer,  be  punished  by  a  fine  of  not  more  than  ten  dol- 
lars. Any  word,  device,  trade  mark,  advertisement  or  notice  which 
has  been  painted,  put  up  or  affixed  within-  the  limits  of  a  highway 
in  violation  of  the  provisions  of  this  section  shall  be  considered  a 
public  nuisance,  and  may  be  forthwith  removed  or  obliterated  and 
abated  by  any  person. 

"Section  116.  Whoever  wilfully  and  maliciously  destroys  or 
injures  the  personal  property  of  another  in  any  manner  or  by  any 
means  not  particularly  described  or  mentioned  in  this  chapter  shall 
be  punished  by  imprisonment  in  the  state  prison  for  not  more  than 


Cutting  trees  or 
injury  to  crops. 


Stray  cattle. 


Painting  or 

attaching 

advertisements 

without 

permission. 


Destruction  of 
property. 


Lord's  day. 


70  THE   LAW   OF   THE    ROADSIDE 

five  years  or  by  a  fine  of  not  more  than  one  thousand  dollars  and 
imprisonment  in  jail  for  not  more  than  one  year;  but  if  the  value 
of  the  property  so  destroyed  or  injured  is  not  alleged  to  exceed 
fifteen  dollars,  the  punishment  shall  be  by  a  fine  of  not  more  than 
fifteen  dollars  or  by  imprisonment  for  not  more  than  thirty  days." 
Malicious  "Section  121.     Whoever  is  discovered  in  the  act  of  wilfully  in- 

mischief  on  juring  a  fruit  or  forest  tree  or  of  committing  any  kind  of  malicious 
mischief  on  the  Lord's  day  may  be  arrested  without  a  warrant  by 
a  sheriff,  deputy  sheriff,  constable,  watchman,  police  officer  or  other 
person,  and  detained  in  jail  or  otherwise  until  a  complaint  can  be 
made  against  him  for  the  offence,  and  he  be  taken  upon  a  warrant 
issued  upon  such  complaint;  but  such  detention  without  warrant 
shall  not  continue  more  than  twenty-four  hours." 


Copies  of  the  more  important  parts  of  the  above  sec- 
tions suitable  to  be  affixed  to  trees  or  otherwise  posted 
in  the  open  air  may  be  obtained  without  charge  from  the 
secretary  of  the  State  Board  of  Agriculture.  Acts  of 
1904,  Chap.  444,  Sees.  2  and  3. 

Section  115  is  notoriously  disregarded,  to  the  great 
disfigurement  of  our  landscape. 

See  also  various  sections  cited  in  Chapter  II.  of  this 
pamphlet,  more  especially  applicable  to  the  roadside. 

Acts  of  1904,  Chapter  305,  is  as  follows: — 

"Whoever  wantonly  destroys  or  injures  the  personal  property  of 
another  in  any  manner  or  by  any  means  not  particularly  described 
or  mentioned  in  chapter  two  hundred  and  eight  of  the  Revised  Laws 
shall  be  punished  by  a  fine  of  not  more  than  five  hundred  dollars  or 
by  imprisonment  for  not  more  than  one  year;  but  if  the  value  of 
the  property  so  destroyed  or  injured  is  not  alleged  to  exceed  fifteen 
dollars  the  punishment  shall  be  a  fine  of  not  more  than  fifteen  dollars 
or  imprisonment  for  not  more  than  thirty  days." 


TRESPASS  71 

Closely  connected  with  this  subject  are  certain  pro-  Fires, 
visions  of  law  relating  to  fires. 

Revised  Laws,  Chapter  208,  Sections  1  to  4,  impose 
severe  penalties  for  wilfully  and  maliciously  setting  fires 
to  buildings  of  various  kinds,  and  Section  5  imposes  lesser 
penalties  for  "wilfully  and  maliciously"  burning  or  de- 
stroying timber,  lumber,  and  other  products,  fences  and 
standing  trees,  grain  and  grass. 

Section  7  covers  the  case  of  "wantonly  or  recklessly" 
setting  fire  to  trees,  and  Section  8  that  of  "wilfully  or 
negligently"  setting  a  fire  on  the  land  of  another,  or  per- 
mitting a  fire  on  one's  own  land  to  extend  to  the  land 
of  another  whereby  his  property  is  injured. 

Section  9  is  as  follows: — 

"Whoever  in  a  town  which  accepts  the  provisions  of  this  section  or  Setting  fires  on 
has  accepted  the  corresponding  provisions  of  earlier  laws  sets  a  fire  on  another's  land- 
land  which  is  not  owned  or  controlled  by  him  and  before  leaving  the 
same  neglects  to  entirely  extinguish  such  fire,  or  whoever  wilfully  or 
negligently  sets  a  fire  on  land  which  is  not  owned  or  controlled  by 
him  whereby  property  is  endangered  or  injured,  or  whoever  wilfully 
or  negligently  suffers  a  fire  upon  his  own  land  to  escape  beyond  the 
limits  thereof  to  the  injury  of  another,  shall  be  punished  by  a  fine 
of  not  more  than  one  hundred  dollars,  or  by  imprisonment  in  jail 
for  not  more  than  one  month,  or  by  both  such  fine  and  imprison- 
ment; and  shall  also  be  liable  for  all  damages  caused  thereby.  Such 
fine  shall  be  equally  divided  between  the  complainant  and  the  town." 

The  following  statute  goes  further,  and  applies  not 
only  to  trespassers,  but  also  to  land  owners  setting  fires 
on  their  own  premises,  in  cities  and  in  such  towns  as 
have  voted  to  adopt  its  provisions. 


72 


THE  LAW  OF  THE  ROADSIDE 


Acts  of  1908,  Chapter  209: 


Setting  fires 
between 
March  i  and 
December  i. 


"Section  i.  It  shall  be  unlawful  within  any  city,  or  within  any 
town  which  accepts  the  provisions  of  this  act,  for  any  person  to  set 
a  fire  in  the  open  air  between  the  first  day  of  March  and  the  first 
day  of  December  except  by  the  written  permission  of  the  forest 
warden,  or  the  chief  of  the  fire  department  or,  in  cities  that  have  such 
an  official,  the  fire  commissioner;  provided,  that  debris  from  fields, 
gardens  and  orchards,  or  leaves  and  rubbish  from  yards  may  be 
burned  on  ploughed  fields  by  the  owners  thereof,  their  agents  or 
lessees;  and  provided,  further,  that  persons  above  eighteen  years 
of  age  may  maintain  a  fire  for  a  reasonable  purpose  upon  sandy  or 
barren  land,  if  the  fire  is  enclosed  within  rocks,  metal  or  other  non- 
inflammable  material.  In  every  case  such  fire  shall  be  at  least  two 
hundred  feet  distant  from  any  forest  or  sprout  lands,  and  at  least 
fifty  feet  distant  from  any  building,  and  shall  be  properly  attended 
until  it  is  extinguished.  The  forest  warden  shall  cause  public 
notice  to  be  given  of  the  provisions  of  this  section,  and  shall  enforce 
the  same.  Whoever  violates  the  provisions  of  this  section  shall  be 
punished  by  a  fine  of  not  more  than  one  hundred  dollars,  or  by 
imprisonment  for  not  more  than  one  month,  or  by  both  such  fine 
and  imprisonment.     As  amended  Acts  of  1911,  Chap.  244,  Sec.  1. 

"Section  2.  The  provisions  of  the  preceding  section  shall  not 
apply  to  fires  which  may  be  set  in  accordance  with  regulations  and 
methods  approved  by  the  superintendent  for  suppressing  the  gypsy 
and  brown  tail  moths." 

"Section  4.  The  state  forester  and  forest  warden,  or  any  duly 
authorized  assistant  in  the  employ  of  the  state  forester,  or  any  duly 
appointed  deputy  forest  warden,  may  arrest  without  a  warrant  any 
persons  found  in  the  act  of  setting  or  maintaining  a  fire  in  violation 
of  the  provisions  of  this  act. "  As  amended  Acts  of  191 1,  Chap.  244, 
Sec.  2. 


In  towns  where  it  has  been  accepted,  this  statute  takes 
the  place  of  Revised  Laws,  Chapter  32,  Section  24,  which 


TRESPASS  73 

forbade  open-air  fires  between  April  i  and  October  i  with- 
out similar  permission,  in  towns  which  had  accepted  its 
provisions.  The  1908  statute  has  been  accepted  in  more 
than  two-thirds  of  the  towns  in  the  State.  It  may  be 
submitted  to  the  voters  of  any  of  the  remaining  towns 
by  the  selectmen  at  any  town  meeting.  Whether  it  is 
in  force  in  a  particular  town  may  be  ascertained  by 
applying  to  the  town  clerk. 

Acts  of  1907,  Chapter  299,  authorizes  the  fish  and  game 
commissioners  and  their  deputies  to  arrest  without  a 
warrant  any  person  found  in  the  act  of  unlawfully  setting 
a  fire. 

There  is  also  a  special  statute  applicable  only  to  the  Special  law 
counties    of    Barnstable   and   Plymouth    (Acts   of    1910,  ^litabler° 

■'  v  y       '    Plymouth  and 

Chap.  478),  enacted  with  a  view  to  lessening  the  danger  Barnstable 
of  fire,  which  makes  it  unlawful  for  any  unnaturalized,  counties- 
foreign-born  person  to  pick  wild  berries  or  flowers,  or  to 
camp  or  picnic  upon  any  land  of  which  he  is  not  the 
owner,  between  April  1  and  December  1,  without  written 
permission  of  the  owner.  Failure  to  produce  such  written 
permit  on  demand  of  an  officer  or  forest  warden  is  prima 
facie  evidence  of  a  violation  of  the  act,  and  authorizes 
the  arrest  of  the  trespasser  without  a  warrant.  A  penalty 
of  fine  or  imprisonment  is  provided  for. 

Section  2.      CIVIL   TRESPASS. 

"The  gist  of  an  action  for  trespass  to  land  consists  in  the  wrongful 
entry  upon  it,  and  so  in  interfering  with  the  owner's  (or  tenant's) 
right  of  entire  possession.  Any  entry  upon  land  in  the  rightful  pos- 
session of  another,  without  license  or  permission,  is  a  breach  of  duty 


74  THE  LAW  OF  THE  ROADSIDE 


What  constitutes  to  the  possessor;  and  this  too  though  the  land  be  unenclosed.  It 
a  civil  trespass.  f0nows  that  an  action  is  maintainable  for  such  an  entry,  though  it 
be  attended  with  no  damage  to  the  possessor.  For  example:  The 
defendant  without  permission  enters  upon  unenclosed  land  in  the 
lawful  possession  of  the  plaintiff,  with  a  surveyor  and  chain  carriers, 
and  actually  surveys  part  of  it,  but  without  doing  any  damage. 
The  act  is  a  breach  of  duty  to  the  plaintiff,  and  the  defendant  is 
liable  at  least  to  nominal  damages." 

"A  close  is  deemed  to  have  been  broken  and  entered  even  though 
the  act  was  not  in  fact  committed  within  it,  but  only  against  its 
bounds.  To  bring  anything  against  such  bounds  without  permission 
is  a  trespass.  For  example:  The  defendant,  without  permission, 
drives  nails  into  the  outer  walls  of  the  plaintiff's  building,  which 
stands  upon  the  line  of  the  plaintiff's  premises.  This  is  a  breach  of 
duty  for  which  the  defendant  is  liable  in  damages.  Again:  The 
defendant  heaps  up  dirt  close  to  the  plaintiff's  boundary  wall,  and 
the  dirt,  of  itself,  falls  against  the  wall.  This  is  a  trespass."  See 
Bigelow  on  Torts,  8th  Edition,  pages  378,  379. 

See,  further,  Revised  Laws,  Chapter  185,  Sections  7,  8: 

Statutes  creating  "Section  7.  A  person  who  without  license  wilfully  cuts  down, 
civil  liability.  carries  away,  girdles  or  otherwise  destroys  any  trees,  timber,  wood 
or  underwood  on  the  land  of  another  shall  be  liable  to  the  owner  in 
an  action  of  tort  for  three  times  the  amount  of  the  damages  assessed 
therefor;  but  if  it  is  found  that  the  defendant  had  good  reason  to 
believe  that  the  land  on  which  the  trespass  was  committed  was  his 
own  or  that  he  was  otherwise  lawfully  authorized  to  do  the  acts 
complained  of,  he  shall  be  liable  for  single  damages  only. 

"Section  8.  A  trespasser,  if  the  trespass  was  casual  and  involun- 
tary, may,  before  an  action  is  commenced,  tender  the  damages  and, 
upon  action  brought,  disclaim  title  and  allege  the  tender  and  that 
the  trespass  was  casual  and  involuntary;  and  if  it  is  found  that  the 
allegations  are  true  and  if  he  has  deposited  with  the  court  the  amount 
of  his  tender  at  the  time  of  filing  his  answer  and  the  damages  assessed 


TRESPASS  75 

are  not  more  than  the  amount  tendered,  he  shall  recover  his  costs. 
Such  tender  may,  subject  to  the  same  provisions,  be  made  after  the 
action  has  been  commenced  with  like  effect,  if  it  covers  the  costs  to 
the  time  of  tender." 

Section  7  above  quoted  is  an  excellent  remedy  to  apply 
in  the  case  of  injury  done  by  the  employees  of  electric 
companies  to  trees  standing  along  the  highways.  Single 
damages  estimated  in  dollars  would  hardly  pay  for  a  suit 
in  most  cases.  But  the  triple  damages  which  are  recover- 
able under  this  statute  might  well  pay  for  the  vexation 
and  trouble  of  the  litigation,  and,  what  is  vastly  more 
important,  would  have  the  effect  of  preventing  further 
trouble.  It  was  formerly  not  unusual  for  the  companies 
to  do  much  damage  to  trees  along  their  lines,  but  fortu- 
nately in  most  localities  at  least  they  are  now  careful  to 
comply  with  the  laws. 

As  in  the  previous  section  relating  to  criminal  trespass,  Railroads,  fires, 
so  in  this  section  on  civil  trespass,  there  are  certain  statu- 
tory provisions  about  fires  which  seem  to  come  within  the 
general  scope  of  our  discussion. 

Acts  of  1906,  Chapter  463,  Part  II.,  Section  247,  is  as 
follows : — 

"Section  247.  Every  railroad  corporation  shall  be  liable  in 
damages  to  a  person  or  corporation  whose  buildings  or  other  prop- 
erty may  be  injured  by  fire  communicated  by  its  locomotive  engines, 
and  shall  have  an  insurable  interest  in  the  property  upon  its  route 
for  which  it  may  be  so  held  liable,  and  may  procure  insurance  thereon 
in  its  own  behalf.  If  it  is  held  liable  in  damages,  it  shall  be  entitled 
to  the  benefit  of  any  insurance  effected  upon  such  property  by  the 
owner  thereof,  less  the  cost  of  premium  and  the  expense  of  recovery. 


76 


THE  LAW  OF  THE  ROADSIDE 


Railroads  to 
maintain  spark 
arresters  and 
keep  locations 
clear. 


Railroads  may 
clear  adjoining 
private  property. 


The  money  received  as  insurance  shall  be  deducted  from  the  dam- 
ages, if  recovered  before  they  are  assessed;  and  if  not  so  recovered, 
the  policy  of  insurance  shall  be  assigned  to  the  corporation  which 
is  held  liable  in  damages,  and  may  maintain  an  action  thereon." 


This  statute  has  the  effect  of  making  the  railroad 
company  liable  irrespective  of  negligence  on  its  part, 
provided  the  land  owner  can  prove  that  fire  was  communi- 
cated to  his  property  by  the  locomotive  engines  of  the 
company. 

Attention  may  be  called  in  this  connection  to  Acts  of 
1907,  Chapter  431,  which  requires  railroad  companies  to 
maintain  spark  arresters  on  its  engines,  and  between 
April  1  and  December  1  to  keep  its  locations  clear  of 
dead  leaves  and  other  inflammable  material.  Due 
enforcement  of  these  requirements  may  obviate  the 
necessity  of  a  suit  for  damages  at  a  later  time.  Probably 
the  most  effective  way  to  secure  their  enforcement  is 
by  applying  to  the  Railroad  Commissioners.  This  act 
further  authorizes  railroad  companies  to  enter  upon 
unimproved  land  adjoining  their  locations  for  the  pur- 
pose of  clearing  such  land  of  dead  leaves,  grass,  and  wood 
to  a  distance  of  one  hundred  feet  from  the  tracks,  at  their 
own  expense  and  subject  to  the  direction  of  the  forest 
warden,  without  becoming  liable  for  trespass.  The  com- 
pany must,  however,  before  so  doing,  give  notice  to  the 
owner  and  occupant  of  the  land  and  to  the  forest  warden 
in  accordance  with  the  provisions  of  Section  2  of  this 
statute. 

The  statute  also  requires  employees  of  railroad  com- 


TRESPASS  77 

panies  on   discovering   fires   to  make   certain  efforts  to 
extinguish  them. 

Acts  of  1909,  Chapter  394,  permits  cities  and  towns  to 
recover  from  railroad  companies  the  reasonable  expense 
of  extinguishing  fires  due  to  their  negligence. 

Note. — In  addition  to  the  laws  relating  to  fires  which  have  seemed 
to  be  within  the  scope  of  this  pamphlet,  there  are  various  other  en- 
actments with  regard  to  the  powers  and  duties  of  cities  and  towns, 
of  the  State  Forester  and  of  the  town  forest  wardens,  for  the  preven- 
tion and  extinguishment  of  fires,  which  may  be  found,  together  with 
other  statutes  relating  to  forestry,  in  a  pamphlet  issued  by  the 
State  Forester. 

Section  3.     WHAT  ARE  THE  BOUNDARIES  OF  THE 
PUBLIC  WAY? 

In  determining  whether  or  not  a  trespass  has  been 
committed  for  the  redress  of  which  any  of  the  above 
remedies  may  be  invoked,  as  well  as  in  determining  what 
the  rights  of  different  parties  may  be  in  connection  with 
some  of  the  other  subjects  treated  in  this  pamphlet,  it 
may  often  become  important  to  ascertain  what  are  the 
exact  boundaries  of  the  public  way. 

The  authorities  who  are  charged  with  the  duty  of  laying  Bounds  of  way 
out  ways  have  long  been  required  to  cause  a  description  to  e  recor  e 
of  the  location  and  bounds  of  every  way,  when  laid  out 
or  altered,  to  be  recorded  by  the  town  clerk  in  a  book 
kept  for  that  purpose.  Revised  Laws,  Chap.  48,  Sees.  8, 
81.  They  are  required  by  a  more  recent  statute,  enacted 
in  1898,  when  land  is  taken  or  purchased  for  highway 
purposes  to  cause  a  description  and  plan  thereof  to  be 


78 


THE  LAW  OF  THE  ROADSIDE 


recorded  in  the  Registry  of  Deeds.  Revised  Laws,  Chap. 
48,  Sec.  97.  They  are  also  required  by  a  statute  of  long 
standing  to  erect  permanent  bounds  at  the  termini  and 
angles  of  all  ways  laid  out  by  them.  Revised  Laws,  Chap. 
48,  Sec.  104.  This  latter  provision  applies  only  to  the 
laying  out  and  not  to  the  relocation  or  widening  of  ways 
(Harvey  v.  Inhabitants  of  Easton,  189  Mass.  505). 

These  records,  then,  in  the  offices  of  the  town  clerks 
or  in  the  Registries  of  Deeds,  and  the  monuments,  gener- 
ally in  the  form  of  substantial  stone  bounds,  constitute 
the  usual  data  for  determining  the  exact  boundaries  of 
the  public  way,  and  should  prove  sufficient  in  the  case 
Ancient  ways,  of  ways  recently  laid  out.  In  the  case  of  ancient  ways, 
however,  both  records  and  monuments  may  be  lacking 
or  insufficient.  Such  cases  are  provided  for  by  the  fol- 
lowing statute,  Revised  Laws,  Chapter  53,  Section  1: — 

"Section  i.  If  buildings  or  fences  have  been  erected  and  con- 
tinued for  more  than  twenty  years,  fronting  upon  or  against  a  high- 
way, town  way,  private  way,  training-field,  burying-place,  landing- 
place,  street,  lane  or  alley,  or  other  land  appropriated  for  the  gen- 
eral use  or  convenience  of  the  inhabitants  of  the  commonwealth,  or 
of  a  county,  city,  town  or  parish,  and  from  the  length  of  time  or 
otherwise  the  boundaries  thereof  are  not  known  and  cannot  be  made 
certain  by  the  records  or  by  monuments,  such  buildings  or  fences 
shall  be  taken  to  be  the  true  boundaries  thereof.  If  boundaries  of 
such  ways  or  places  can  be  made  certain  any  building  or  fence 
thereon  may  upon  the  presentment  of  a  grand  jury  be  removed  as 
a  nuisance  unless  it  has  continued  at  least  forty  years." 


The  effect  of  the  first  part  of  this  provision  is  that  build- 
ings or  fences  which  have  fronted  on  or  against  the  way 


TRESPASS  79 

shall  be  taken  to  be  the  true  boundaries  only  if  it  is  shown 
that  the  true  boundaries  are  unknown  and  cannot  be 
made  certain.  It  is  not  enough  that  no  evidence  of  the 
true  boundaries  is  offered.  Home  v.  Haverhill,  no  Mass. 
527,  528. 

Whether  a  fence  more  or  less  near  a  way  is  to  be  con- 
sidered as  within  this  provision  is  a  question  for  the  jury 
to  decide.     Sprague  v.  Wait,  17  Pick.  309,  318. 

By  the  last  clause,  on  the  other  hand,  the  maintenance 
of  a  fence  or  building  within  the  limits  of  the  way  for 
forty  years  under  a  claim  of  right,  gives  to  the  abutting 
owner  as  against  the  public  an  absolute  right  to  main- 
tain it  there.     Gifford  v.  Westport,  190  Mass.  323. 

With  regard  to  State  highways  there  is  a  special  stat-  state  highways, 
utory  provision  as  follows,  Revised  Laws,   Chapter  47, 
Section  20: — 

"Section  20.  No  length  of  possession,  or  occupancy  of  land 
within  the  limits  of  a  state  highway,  by  an  owner  or  occupant  of 
adjoining  land  shall  give  him  any  title  thereto,  and  any  fences, 
buildings  or  other  obstructions  encroaching  upon  a  slate  highway 
shall,  upon  written  notice  by  said  commission,  be  forthwith  removed 
by  the  owner  or  occupant  of  adjoining  land,  and  if  not  so  removed, 
said  commission  may  cause  the  same  to  be  removed  upon  said 
adjoining  land." 


In  view  of  this  section,  of  course  no  absolute  right 
can  be  now  obtained  by  maintaining  a  fence  or  building 
for  forty  years  within  the  limits  of  what  is  now  a  State 
highway,  but,  if  such  fence  or  building  could  be  shown 
to  have  been   maintained   for   the  full   period  of  forty 


80  THE  LAW  OF  THE  ROADSIDE 

years  before  the  passage  of  this  statute  in  1893,  or  before 
the  way  in  question  became  a  State  highway,  even  though 
that  should  be  much  more  recently  than  1893,  it  would 
seem  that  an  absolute  right  would  have  been  obtained 
which  the  statute  would  not  affect.  Nor  does  this  pro- 
vision appear  to  have  any  application  to  the  first  part 
of  Section  1  of  Chapter  47  above  quoted,  so  that  even 
in  the  case  of  a  State  highway,  if  the  true  boundaries 
cannot  be  otherwise  determined,  fences  or  buildings 
maintained  as  above  stated  for  twenty  years  will  be 
presumed  to  mark  the  boundaries. 


INDEX 


Mass 


Acts  of  the  Legislature.     (See  Statutes.) 
Advertising  Signs: 

penalty  for  placing  on  trees  in  public  places 

display  of,  near  parks,  regulation  of     . 

when  statutes  regarding  unconstitutional    . 

penalty  for  placing  on  property  of  another 

within  limits  of  highway,  a  nuisance    . 
Aldermen.     (See  Selectmen  and  Mayor  and  Aldermen.) 
Brown  Tail  Moths.     (See  Insect  Pests.) 
Cases  Cited: 

Aldworth  v.  Lynn,  153  Mass.  53    . 

Boston  v.  Richardson,  13  Allen,  146,  154 

Boston  El.  Light  Co.  v.  Boston  Terminal  Co.,  1 
566 

Chase  v.  Lowell,  149  Mass.  85 

Chase  v.  Lowell,  151  Mass.  422     . 

Commonwealth  v.  Byard,  200  Mass.  175 

Commonwealth  v.  Boston,  97  Mass.  555 

Commonwealth  v.  Boston  Advertising  Co.,  188  Mass 

Eustis  v.  Milton  St.  Ry.  Co.,  183  Mass.  586 

Gilford  v.  Westport,  190  Mass.  323 

Harvey  v.  Inhabs.  of  Easton,  189  Mass.  505 

Home  v.  Haverhill,  no  Mass.  527,  528 

N.  E.  Tel.  &  Tel.  Co.  v.  Boston  Terminal  Co.,  182  Mass 

397 

Opinion  of  Atty.-Gen.  (Mass.),  Annual  Rep.  1906,  54 
Pensacola  Tel.  Co.  v.  Western  Union  Tel.  Co.,  96  U 
Perley  v.  Chandler,  6  Mass.  454    .... 
Pierce  v.  Drew,  136  Mass.  75 


348 


S. 


20,  26, 


53 
54 
55 
69 
69 


37 
4i 

18 
5i 

52 
44 
20 

55 
19 
79 
78 
79 

18 
13 
19 
42 
34.  35 


82  INDEX 

PAGE 

Cases  Cited:  (Continued.) 

Richmond  v.  So.  Bell.  Tel.  Co.,  174  U.  S.  761  19 

39 
79 


Riley  v.  N.  E.  Tel.  &  Tel.  Co.,  184  Mass.  150    . 

Sprague  v.  Wait,  17  Pick.  309,  318 

Sub.  Light  &  Pow.  Co.  v.  Boston,  153  Mass.  200 

Tucker  v.  Eldred,  6  R.  I.  404 42 

White  v.  Godfrey,  97  Mass.  472 51 

Young  v.  Yarmouth,  9  Gray,  386  ....      20,  26,  38,  39 

Cities.     (See  Towns  and  Cities.) 

Constables.     (See  Watchmen.) 

Damages: 

owner  of  land  abutting  on  highway  on  which  electric  line 

is  run,  entitled  to 34 

appeal  may  be  had  to  jury  to  assess 36 

triple  damages  from  electric  companies,  when    ...         38 

for  injury  from  poles  in  highway 38 

may  be  had  for  retention  of  tree  in  State  highway    .  49 

may  be  had  for  trespass  to  land 74 

triple  damages  for  wilful  injury  to  trees      ....         74 
may  be  had  for  fires  set  by  railroads 75 

Easement: 

location  not  obtainable  by  prescription        .        ,        .        .         15 

to  maintain  fences,  etc.,  on  highways 78 

not  to  maintain  fences,  etc.,  on  State  highways         .       .         79 

Electric  Companies: 

term,  how  used 10 

locations 10 

(See  also  Location.) 

Electric  Light  Companies: 

what  laws  applicable  to 9 

(See  also  Electric  Companies,  Telegraph  Companies,  Mu- 
nicipal Lighting  Plants.) 

Electric  Railroad  Companies: 

to  what  extent  treated  herein 9,  10 

certain  laws  applicable  to 9 

(See  also  Telegraph  Companies.) 


INDEX  83 

PAGE 

Fires: 

penalty  for  setting  of,  on  property  of  another  .  .  .  71 
regulations  regarding  setting  of  open-air  fires     .  .         72 

damages  for  fires  set  by  railroads 75 

railroads  may  insure  against 75 

railroads  must  take  precautions  against       ....  76 

railroads  may  clear  adjoining  private  property  to  guard 

against 76 

railroads  must  extinguish 76 

Forester: 

office  of  town  forester  abolished 47 

(See  also  State  Forester,  Tree  Warden.) 

Gas  and  Electric  Light  Commissioners: 

must  approve  locations  in  certain  cases  .  .  .  .11,12 
appeal  to,  regarding  locations  for  electric  light  companies,  1 1 
may  grant  locations  in  certain  cases 11,26 

Gypsy  Moths.     (See  Insect  Pests.) 

Hearings: 

regarding  grant  of  locations 10,12,14.22 

before  alteration  of  location,  company  entitled  to      .        .  26 

before  removal  of  trees  on  highway      .  -43,  45,  48,  50 

Highways: 

electric  lines  in 9 

abutting  owner  usually  owner  of  fee  in        .  .        .  13,  41 

reserved  spaces  in 19 

use  of,  by  electric  lines,  no  additional  easement  .  .  34 
damage  occasioned   by  use  of,  by  electric  lines,  to  be 

assessed 34,  36 

also   damage   from   alteration    of   location   in,   may   be 

recovered 35 

must  be  kept  reasonably  safe 38 

shade-trees  in  highways 42-47 

bounds  of,  to  be  recorded  by  town  clerk  .  .  .  77,  78 
plan  of,  to  be  recorded  in  Registry  of  Deeds  .  .  .  78 
where  monuments  must  be  set  up 78 


84  INDEX 

PAGE 

Highways:  (Continued.) 

when  buildings   and   fences   to   be    taken    as    the    true 

bounds 78 

prescriptive  right  to  maintain  fences  on  .        .        .78,  79 

(See  also  Slate  Highways.) 

Highway  Commission: 

must  approve  locations  on  State  highways  .        .        .         13 

trees    cannot   be   planted    in    State     highway   without 

authority  of 48 

power  to  enforce  criminal  statute  relating  to  trees     .        .         54 
in    charge    of    suppression    of    insect    pests    on    State 

highways 59 

Highway  Surveyors: 

authority  over  trees  in  highways 43,  52 

Insect  Pests: 

towns  may  appropriate  money  for  suppression  of  .  57 

certain   municipal  officers  may  enter  private  lands    to 

investigate 57 

penalty  for  transporting 58 

power  of  State  Forester  regarding 58,  60 

power  of  local  superintendent  for  suppression  of  58 
towns  may  be  compelled  to  increase  expenditures  for  sup- 
pression of 59 

private  land-owners  must  suppress 60 

duties  of  State  Nursery  Inspector  regarding       ...  62 

when  private  land-owners  must  suppress  San  Jose  scale  .  63 

Land-owners,  Private: 

to  be  heard  on  grant  of  location io,  ia 

of  fee  in  highway,  may  cut  poles,  when     .       .       .     13,  15,  20 
no  presumption  of  grant  of  easement  by,  after  twenty 

years lS 

may  revoke  license  to  erect  line 20 

may  cut  wires  over  their  lands 24 

may  prosecute  companies  unlawfully  erecting,  and  failing 

to  mark  poles,  etc 24 


INDEX  85 


PAGE 


Land-owners,  Private:  (Continued.) 

entitled  to  damages  for  lines  in  highways    ....   34-38 

entitled  to  damages  on  alteration  of  location      ...  36 

may  appeal  to  jury  to  assess  damages          ....  36 

must  pay  costs  of  appeal,  when 36 

may  have  poles  and  wires  removed  if  damages  assessed 

are  not  paid 37 

owner  of  trees  in  highway 41 

may  have  damages  for  illegal  cutting 51 

no  redress  if  petition  to  remove  trees  on  public  highway 

denied 51 

must  suppress  insect  pests 60 

railroads  may,  after  notice,  clear  land  of,  adjoining  .        .  76 

Location  for  Electric  Lines: 

term  "  location  "  denned 10 

how  obtained 10 

specification  of,  to  be  recorded 10,  12 

locations  by  electric  power  companies          .        .        .        .  10 

when  locations  may  be  granted  by  State  Boards       .        .  12 

map  of  location  to  be  recorded 12 

locations  upon  State  highways 13 

no  right  to  location  by  prescription 15 

how  far  location  may  be  revoked  or  altered        .        .       .  18,  26 

telegraph  companies  entitled  to,  on  post  roads  ...  19 

must  not  incommode  public  travel 19 

how  obtained  over  private  land 20 

for  private  lines 20 

may  be  refused,  when 20 

by  municipal  lighting  plant 21 

though  properly  granted,  may  be  an  obstruction  of  the 

highway 39 

Mayor  and  Aldermen. 

(See  Selectmen  and  Mayor  and  Aldermen.) 

Metropolitan  Park  Commissioners: 

may  regulate  display  of  advertisements  near  parks    .  54 
(See  also  Park  Commissioners.) 


86 


INDEX 


Municipal  Lighting  Plants: 

may  be  established  by  towns 

under  management  of  manager  of  municipal  lighting 

subject  to  laws  applicable  to  private  companies 

locations  for 

towns  liable  for  injuries  caused  by  operation  of 
Ordinances  : 

(See  Towns,  Selectmen.) 
Park  Commissioners: 

•    authority  over  trees  in  parks 

cannot  cut  trees  without  a  hearing       .... 

(See  also  Metropolitan  Park  Commissioners.) 
Penalties: 

for  affixing  poles,  etc.,  to  property  of  another    . 

for  failing  to  mark  posts,  etc.,  on  another's  land 

for  not  insulating  poles 

for  cutting  public  shade-trees        .... 

for  wanton  injury  to  trees 

for  wanton  injury  to  public  shade-trees 

for  affixing  advertising  signs  to  public  shade-trees 

for  displaying  advertising  signs  near  parks 

for  injury  to  trees  in  State  highways    . 

for  not  allowing  tree  warden  to  inspect  premises  for  insect 
pests 

for  knowingly  transporting  insect  pests 

for  town's  failure   to   comply  with   directions   of 
Forester 

for  trespassing  on  improved  land  .... 

for  trespassing  with  firearms 

for  pulling  down  stone  wall 

for  cutting  down  or  removing  property  of  another 

for  maliciously  injuring  property  of  another 

for  cutting  trees  or  injury  to  crops 

for  allowing  stray  cattle  to  trespass 

for  placing  advertisements  on  property  of  another 

for  malicious  destruction  of  property   . 


State 


21 
21 

22 
2  2 
23 


48 

48 


23 
23 
31 

45,  56 
52 
52 
53 
54 
55 

57 


59 
64 

65 
67 
68 
68-70 
69 
69 
69 
69 


INDEX  87 


PACE 


Penalties:  (Continued.) 

for  malicious  mischief  on  Lord's  Day 70 

for  maliciously  setting  fires  on  land  of  another  .        .        .  71 

for  unlawful  setting  of  fires 72 

Poles  and  Wires: 

if  not  planted  according  to  location,  may  be  removed .        .  13,15 

when  lines  may  be  consolidated 16,  27 

over  private  land  without  permission,  may  be  removed     .  20 

penalties  for  unlawful  erection,  etc 23 

affixed  to  property  of  another,  must  be  marked       .  23 

when  wires  may  be  put  underground 27 

wires  to  be  insulated  in  certain  cases 29 

untagged  wires  may  be  removed 29 

inspector  of  wires 30 

poles  must  be  insulated 31 

penalty  for  cutting  or  injury  to 32 

removal  of  unused  poles,  etc. 33 

may  be  removed,  if  company  fails  to  pay  damages    .        .  37 
may  be  defects  in  highway,  though  location  was  properly 

granted 39 

Railroad  Commissioners: 

may  grant  locations  in  certain  cases 11,26 

restrictions  on  locations  require  approval  of,  when    .       .  12 

Regulation  of  Electric  Lines: 

of  electric  power  companies 10 

by  Highway  Commission  of  locations  on  State  highway  .  13 

consolidation  of  wires 16,  27 

by  Selectmen  or  Mayor  and  Aldermen        .        .       .       .  17,  25 

must  be  reasonable i7>  26 

term  "regulation"  defined 25 

undergrounding  wires 27 

certain  wires  must  be  insulated 29 

certain  wires  must  be  tagged 29 

inspector  of  wires 3° 

poles  must  be  insulated 31 

when  company  must  act  to  move  buildings        .        .        .  32 


88 


INDEX 


use  of 


Roads        

(See  Highways.) 
San  Jose  Scale     

(See  also  Insect  Pests.) 
Selectmen  and  Mayor  and  Aldermen: 

may  grant  locations 

regulation  of  electric  power  companies 

may  compel  new  lines  to  use  poles  and  wires  of  old 

may  make  reasonable  regulations  regarding  electric  1 

how  far  authorized  to  alter  or  revoke  locations  . 

may  compel  removal  of  poles  to  reserved  spaces 

may  grant  locations  for  private  lines    . 

manager  of  municipal  lighting  under  direction  of 

may  grant  locations  for  municipal  lighting  plant 

may  compel  wires  to  be  put  underground   . 

may  remove  unused  poles 

to  assess  damages  done  to  abutting  land-owners  for 
highway  by  electric  lines 

fee  for  assessing  damages 

may  remove  lines  if  company  fails  to  pay  damages 

may  order  removal  of  trees  on  highway 

local  superintendent  for  suppression  of  gypsy  moths  ap 
pointed  by 

may  compel  land-owners  to  suppress  insect  pests 

may  appoint  watchmen 

State  Forester: 

suppression  of  insect  pests  in  charge  of 

may  order  increased  expenditures  by  towns 

power  in  cases  of  emergency 

may  arrest  persons  unlawfully  setting  fires 
State  Highways: 

locations  upon 

care  of  trees  and  bushes  on 

suppression  of  insect  pests  on        .... 

no  prescriptive  right  to  maintain  fences  on 


PACE 

34 
63 


16 

17,  25 

18,  26 
iq 
20 
21 
22 
28 
33 

34 
34,36 

37 

43 

58 
60 
66 

58 
5Q 
60 

72 

13 
49 
59 
79 


INDEX 


89 


State  Nursery  Inspector: 

may  enter  private  land  to  investigate  San  Jos6  scale,  etc.   . 

may  order  land-owner  to  suppress  San  Jose  scale     . 
Statutes  Cited,  Expounded,  etc.: 

Statutes  of  the  United  States. 
U.  S.  Rev.  Sts.,  sec.  5263 — Telegraph  Lines 
23  U.  S.  Sts.  at  Large,  c.  3  (1884) — Post  Routes 

Statutes  of  the  Commonwealth. 
1885,  c.  123,  sec.  2 — Forester 

1902,  Revised  Laws  of  Massachusetts. 

c.  25,  sec.  t6 — Extermination    by  Towns  of  Insect 
Pests 

sec.  52 — Private  Telegraph  Lines     . 

sec.  54 — Regulation  of  Lines  by  Towns  . 

sec.  94 — Police  Officers       .... 
c.  26,  sec.  2,  6 — Power  of  Cities  Same  as  Towns 
c.  28,  sec.  4 — Park  Commissioners 

c.  31,  sec.  2 — Watchmen 

c.  32,  sec.  24 — Open-air  Fires      .... 
c.  34,  sec.  1 — Power  of  Cities  and  Towns  to  manu 
facture  Gas  and  Electricity   . 

sec.  14 — Supply  of  Light,  etc.,  to  Adjoining 
Places        

sec.  19 — Municipal  Light  Board 

sec.  20 — Manager  of  Municipal  Lighting 

sec.  28 — Liability  for  Damage  . 

sec.  30 — Application  of  General  Laws     . 

sec.  31 — Revocation  of  Locations     . 
c.  47,  sec.  1 — State  Highway  Commission 

sec.  1 1 — Maintenance  of  Highways 

sec.  20 — Rights  of  Adjoining  Occupant  . 

sec.  21 — Location  of  Wires 
c.  48,  sec.  28 — Application  for  Jury  to  assess  Dam- 
ages caused  by  Laying  out  Way, 


62 
63 


19 
19 

52 


57 

20 

17,  25 

66 

25 

48 
67 
72 


22 
21 
21 

23 
21 
18 

So 
48 
79 
13,48 


13 


5° 


9o 


INDEX 


Statutes  Cited,  Expounded,  etc.:  (Continued.) 

c.  48,  sec.  80 — Appeal  to  Jury     .... 
sec.  85 — Reserved  Spaces  in  Ways  . 
sec.  109 — Petition  to  Superior  Court 
c.  51,  sec.  10 — Trees,  etc.,  obstructing  Ways    . 
c.  53,  sec.  5 — Removal  of  Unused  Poles    . 
sec.  7 — Shade-trees  in  Cities     . 
sec.  12— Tree  Wardens        .       43,  44,  46,  48 
sec.  13 — Shade-trees  in  Towns    v     . 
sec.  14 — Town  Forester     .... 
sec.  15 — Park  Commissioners   . 
c.  121,  sec.  26 — Right  to  lay  Wires 

sec.  27 — Gas    and    Electric    Light    Commis- 
sioners        

c.  122,  sec.  1,  2 — Location  of  Electric  Lines, 

9,  10,  18,  25, 
sec.  3,  4,  5— Damages        .       .       .       .34, 
sec.  15 — Liability  of  Company 
sec.  16-19 — Protection,  Marking  and  Super- 
vision of  Wires 
sec.  20,  21 — Insulation  of  Poles 
sec.  22,  23 — Penalty  for  not   Conforming  to 

Law 

sec.  26 — No  Easement  for  Electric  Lines 

sec.  27 — Penalties 

sec.  28-30 — When  Wires  may  be  cut 
c.  185,  sec.  7,  8 — Damages  for  Injury  to  Trees 
c.  208,  sec.  1-5— Malicious    Burning    of    Buildings 

Trees,  etc 

sec.  7,  8 — Negligent  Burning  of  Trees,  etc 

sec.  91 — Pulling  down  Stone  Wall   . 

sec.  99 — Cutting  Timber,  Grain,  etc. 

sec.  100-102 — Malicious  Injury  to  Trees,  etc 

sec.  105,  106 — Trespass  to  Trees  and  Crops 

sec.  107 — Trespass  by  Animals 

sec.  108 — Transportation  of  Injurious  Insects, 


PAG« 

36,  So 
19 
SO 

43,46 

33 

Si 

50,  55 

44,  56 

46 


26,38 

36,37 

39 

28-30 
31 

23,  24 
15 
32 
32 

38,74 

71 
7i 
67 
67 
52,67 
67 
67 
58 


—  INDEX  91 

PAGE 

Statutes  Cited,  Expounded,  etc.:  {Continued.) 

c.  208,  sec.  109 — Trespass  on  Enclosed  Land     .        .  64,  67 
sec.  no — Trespass  with  Firearms            .        .65,  66 
sec.  in — Defacement  of  Notice  against  Tres- 
passers      65,  66 

sec.  115,  116 — Defacement  of  Fences,  etc.,  by 

Advertisements     .        .     54,  55,  67 
sec.  121 — Malicious  Mischief  on  Lord's  Day,         67 

Statutes  of  the  Commonwealth. 

1902,  c.  57,  sec.  1 — Extermination  of  Moths  57 
c.  544,  sees.  30,  32 — Penalty  for  Injury  to  Trees     .  53,  67 

sec.  33 — Penalty  for  Entering  Orchard,  etc.  67 

1903,  c.  158,  sec.  1-3 — Advertisements  in  Parks        .        .  54 

1904,  c.  305 — Penalty  for  Injury  to  Personal  Property   .  70 
c.  444,  sec.  1 — Cutting  Timber,  Grain,  etc.       .        .  67 

sec.  2,  3 — Posting   Extracts   from   Trespass 

Laws 70 

1905,  c.  279,  sec.  1 — Care  of  Shade-trees  ....  49 
sec.  2 — Affixing  Notices  to  Trees  .  .  .  53 
sec.  3 — Injury  to  Shade-trees         .        .        .  55 

c.  381,  sec.  1 — Gypsy  Moths,  etc.,  made  Nuisances,  58 
sec.  2,  3 — Superintendent  ....  58 
sec.  4-6 — Destruction  by  Cities  and  Towns, 

58-60,  62 

sec.  7 — Assessments 61,  62 

sec.  8 — Expenditures 63 

sec.  10 — Repeal  of  Early  Laws       .        .        .         57 

1906,  c.  117,  sec.  1 — Locations  for  Electric  Lines  .         25 
c.  268,  sec.  1-4 — Destruction  of  Moths  by   Cities 

and  Towns 58-60 

sec.  5 — Assessments 61 

c.  463,  Pt.  II.,  sec.  247 — Fires  caused  by  Locomo- 
tives      ....  75 

1907,  c.  299 — Duties  of  Commissioners  on  Fisheries  and 
Game  respecting  Forest  Fires .  73 


92  INDEX 


PACE 


Statutes  Cited,  Expounded,  etc.:  (Continued.) 

1907,  c.  431,  sec.  2 — Precautions  by  Railroads  ...  76 
c.  475,  sec.  10 — Forest  Wardens  ....  47 
c.  521,  sec.  1,  2 — Suppression  of  Moths  by  Towns, 

etc 58,  59 

sec.  3 — Assessments 61 

1908,  c.  209,  sec.  1,  2,  4— Open-air  Fires  ....  72 
c.  233 — Injury  to  Property  by  Electric  Companies,  32 
c.  297,  sec.  1— Care  of  Shade-trees     ....         49 

sec.  2 — Injury  to  Shade-trees         .       .       .         55 
c.  591,  sec.  1 — Superintendent   for   Suppression   of 

Gypsy  Moths 58 

sec.  2 — Notice   to   Land-owners  to  destroy 

Moths 60 

c.  617 — Electric  Power  Companies     .        .        .        .10,11 

1909,  c.  263 — State  Forester 58 

c.  444 — State  Nursery  Inspector         .        .        .        .         62 

1910,  c.  150,  sec.  1 — Local  Superintendent  for  Suppres- 

sion of  Gypsy  Moths        ....         58 

c.  321 — Tree  Wardens 43,  48 

c.  363,  sec.  1 — Trees  within  Limits  of  Highways,  45,  47,  51 
c.  478 — Picking    of    Berries    in    Barnstable    and 

Plymouth 73 

191 1,  c.  173 — Pulling  down  Stone  Wralls      ....         67 

c.  244,  sec.  1,  2 — Open-air  Fires 72 

c.  474 — Suppression  of  Moths  by  Towns,  etc.  .         59 

c.  481 — Locations 12 

c.  509,  sec.  1,  2 — Locations  ...        9,  10,  18,  26 

sec.  3 — Marking  Poles,  etc 29 

sec.  5 — Penalty 23 

sec.  6 — Cutting  of  Wires         ....         32 
sec.  7,  8 — Locations  between  Towns     .        .  12,  26 
Street  Railway  Companies: 

to  what  extent  treated  herein 9,  10 

certain  laws  applicable  to 9 

(See  also  Telegraph  Companies.) 


INDEX 


93 


'7 


Streets.     (See  Highways.) 

Surveyor  of  Highways.     (See  Highway  Surveyors.) 

Telegraph  Companies: 

how  a  location  is  obtained 

may  be  compelled  to  use  poles  of  old  lines  . 

reasonable  regulation  of  lines  of    . 

may  construct  lines  on  post  roads 

may  be  compelled  to  use  reserved  spaces  in  ways 

right  to  location  if  engaged  in  interstate  commerce 

must  not  interfere  with  ordinary  travel 

a  location  may  be  refused 

lines  over  private  lands 

penalty  for  attaching  wires  to  property  of  another 

penalty  for  not  marking  certain  poles,  etc. 

who  may  make  regulations  for  lines  of 

after  notice,  location  may  be  altered    . 

when  lines  of  may  be  consolidated 

when  lines  of  may  be  put  underground 

must  insulate  and  tag  wires  in  certain  cases 

poles  must  be  insulated  .... 

entitled  to  notice  when  building  is  to  be  moved 

must  pay  owner  of  land  abutting  on  highway  damages  in 
certain  cases  

may  appeal  from  damages  assessed  by  selectmen,  etc 

must  pay  costs  of  appeal,  when     . 

must  pay  damages  assessed  within  thirty  days 

right  to  trim  shade-trees         .... 

company  liable  to  town,  when 

liable  for  injury  done  by  poles,  wires,  etc.  . 

Telephone  Companies: 

laws  relating  to  telegraph  companies  applicable  to 

(See  also  Telegraph  Companies.) 
Towns  and  Cities: 

private  electric  lines  become  property  of,  when 

may  establish  municipal  lighting  plants 


10-12 
16 

19,  26 
19 
19 
19 

19,38 
20 
20 
23 
23 
25 
26 

27 
27 
29 
31 
32 

34 
36 
36 
37 
38 
39 
39 


94 


INDEX 


Towns  and  Cities:  (Continued.) 

may  supply  electricity  to  neighboring  town,  when 
liable  for  injury  from  maintenance  of  lighting  plant 
may  provide  for  an  inspector  of  wires  .... 
liable  for  obstruction  of  highway  by  electric  lines 

must  elect  tree  warden 

may  appropriate  money  for  suppression  of  insect  pests 

reimbursement  of 

State  Forester  may  compel  expenditure  by 
must  suppress  insect  pests  on  private  land,  when 

Trees: 

penalty  for  wanton  injury  to 

on  private  property,  overhanging  way 

In  Public  Ways, 
right  of  telegraph  company  to  trim 
owned  by  adjoining  land-owner     . 
power  of  highway  surveyor  respecting 
power  of  tree  warden  respecting    . 

cutting,  planting,  etc 

penalty  for  cutting,  etc 

penalty  for  wanton  injury  to 

penalty  for  affixing  advertising  signs  to 


22 

23 
30 
39 

42 

57 
59 
59 
61 


52,  74 
44 


In  State  Highways, 
exclusive  control  vested  in  Highway  Commissioners 
penalty  for  injury  to 


38 
41 
43 
43 
43,  46,  50 
•  45,  56 
52 
53 


49 

55 


In  Parks, 
authority  over,  vested  in  Park  Commissioners  . 

Tree  Warden: 

how  appointed 

authority  over  trees  in  highways  .... 
authority  over  trees  in  parks  may  be  delegated  to 
power  to  enforce  criminal  statutes  relating  to  trees 
may  investigate  insect  pests  on  private  property 


42 
43,  44 
48 
53 
57 


INDEX  95 

PAGE 

Trespass: 

Civil  Trespass. 

when  a  telegraph  pole  in  highway  is 13 

right  to  remove  poles  and  wires  trespassing        ...  20 

Criminal  Trespass, 

penalty  for  attaching  wires,  etc.,  to  property  of  another  .  23 

penalty  for  criminal  trespass 64 

penalty  for  trespassing  with  firearms 65 

penalty  for  pulling  down  stone  wall 67 

penalty  for  cutting  down  or  removing  property  of  another,  68 
penalty  for  maliciously  injuring  property  of  another    .        .  68,  70 

penalty  for  cutting  trees  or  injury  to  crops         ...  69 

penalty  for  allowing  stray  cattle  to  trespass       ...  69 

penalty  for  setting  fires  on  land  of  another         .        .        .  71 

special  laws  relating  to  Barnstable  and  Plymouth  counties,  73 

United  States  Statutes.     (See  Statutes.) 

Watchmen: 

may  arrest  trespassers  without  a  warrant,  when                .  66 

term  "  watchman "  defined 66 

appointment  of 66 

authority  of 67 

Wires.     (See  Poles  and  Wires.) 


